Emmanuel O. Nna

Profession: Biomedical scientist

Registration Number: BS55776

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 09/04/2018 End: 16:00 10/04/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

During the course of your practise as a Biomedical Scientist:

1. On dates unknown between April 2012 and July 2013 you entered into an agreement to provide Person A with a Supervised Research Training Programme at Cranfield University Technology Park and accommodation in the United Kingdom, via your company, Safety Biomedical Limited at a cost of £9200, and:

a) in doing so you knew you could not fulfil the agreement because the site did not have any or the necessary facilities; and/or

b) you did not comply with the agreement, in that on or around September 2013:

i) you did not provide Person A with a Supervised Research Training Programme as agreed; and/or

ii) you did not provide Person A with accommodation as agreed.

2. In or around November 2013 you did not fulfil your agreement with Cranfield University (the ‘University’) to facilitate Person A’s Academic Visitor position at the University, in that you did not pay the agreed sum of £3000, resulting in the termination of the agreement by the University.

3. Following your non-fulfilment of the terms of the agreement detailed in (1) above, you did not return all of the monies paid to you by Person A.

4. Your actions as detailed in (1), (2) and (3) above were dishonest.

5. The matters set out in (1) to (4) above amount to misconduct.

6. By reason of that misconduct, your fitness to practise is impaired.

Finding

Preliminary Matters

Application by Registrant to re-open decision to allow evidence by way of video link

1. On 10 September 2017, the Panel Chair adjudicated on an HCPC application to allow the Witness, Person A, to give his evidence by way of video link from Nigeria. The basis of the HCPC application was that Person A was in Nigeria and had been refused a visa to enable him to attend the hearing. No response was received from the Registrant. The Panel Chair ruled on and allowed the application.

2. As a preliminary matter on the first day of this Substantive Hearing (17 October 2017), the Registrant applied for the decision to allow a video link to be re-opened. He essentially made five points as follows:

• The Registrant did not know about the application for the use of a video link, as he had not received the application;

• The Registrant had thought that Person A was attending in person and he had not been aware that Person A was not attending in person until told today (17 October 2017) when he arrived. The Registrant was of the view that the witness had deliberately contrived to stay away from the hearing. He, the Registrant, had attended today, and this was the third time that he had attended a HCPC hearing in person;

• The Registrant was of the view that Person A had deliberately omitted evidence from the HCPC bundle, to cast doubt on the Registrant’s honesty and credibility;

• The Registrant’s own witness, CN, had come down from Newcastle in order to attend today.

• The Panel would not be able to properly assess the credibility of Person A if his evidence were given by way of video link rather than in person. Further, the original panel in September 2016 had adjourned the case in order to allow for Witness A to attend in person.

3. Ms Mitchell-Dunn, Counsel instructed on behalf of the HCPC, submitted that the witness should be permitted to give his evidence by way of video link. She said that the Registrant had been provided with the relevant documents for the application, which had been posted to his registered address and sent to his email address. She submitted that the email address to which the application was sent was one from which the Registrant had previously sent an email to the HCPC on 3 May 2017. She further submitted that use of the video link meant that the Panel would see the witness give evidence and would therefore be able to assess his credibility and demeanour.

4. The Panel heard and accepted the advice of the Legal Assessor.

5. In relation to the Registrant’s point that he had not known about the preliminary application by the HCPC to adduce Person A’s evidence by way of video link, the Panel found it surprising that the Registrant had not received the emailed application, as it was sent to an email address from which the Registrant had previously responded to HCPC emails. However, the Panel addressed this by re-considering the HCPC application afresh and in light of the Registrant’s objections.

6. In relation to the Registrant’s point that he had attended himself and thought that the witness would be attending, the Panel noted that it was to the Registrant’s benefit that he had attended to meet and challenge the allegations made against him. However, this did not, in itself, undermine the HCPC’s application.

7. In relation to the Registrant’s point that Person A had deliberately omitted the police report from the latest exhibit bundle, the Panel was satisfied that it was not the witness’s responsibility to determine which evidence was included in the hearing exhibits bundle. It accepted that the document had been omitted by the HCPC, because the HCPC had adjudged that the document might be unfairly prejudicial to the Registrant, given that it contained unfounded allegations which went beyond those which are the subject of this hearing. The Panel subsequently received the document as part of the Registrant’s bundle.

8. In relation to the Registrant’s point that his witness had travelled from Newcastle to attend the hearing in person, the Panel did not consider that this was a consideration which was relevant to whether or not Person A should be permitted to give his evidence by way of video link.

9. In relation to the Registrant’s point that the Panel would not properly be able to cross-examine or challenge the witness’s credibility, the Panel recognised this as a legitimate concern of the Registrant. However, the Panel considered that the video link was a means which would allow an effective assessment of Person A’s credibility. All parties, including the Panel, would be able to see the witness and so would have the opportunity to assess his demeanour, particularly when he was cross-examined by the Registrant.

10. Whilst the Panel acknowledged that the assessment would be made marginally more difficult by video link than in person, the Panel had to balance this against the principle of achieving the best evidence, which in this case was hearing Person A’s evidence by video link. This allegation dates back to 2013. The first adjourned substantive hearing was in September 2016. At that time, when the case was adjourned to allow Person A to attend in person, no issue about obtaining a visa had been identified. The position had now changed, such that on 28 April 2017 Person A had been refused a visa to enter the UK to attend the adjourned hearing in May 2017. Given the terms of the refusal, the Panel was of the view that there was no reasonable expectation that a renewed visa application would be successful, and so no reasonable prospect that he would be able to attend on a future date in person. The Panel concluded that there was a public interest in testing the serious allegations.

11. The Panel, therefore, determined to allow Person A to give his evidence by video link.

Application by the Registrant to adduce evidence by way of telephone

12. At the end of the first day, the Registrant made an application for his witness, CN, to give his evidence by telephone. He submitted that CN was a significant witness, whose evidence was important to challenge the reliability of the evidence of Person A. The Registrant explained that CN had travelled from Newcastle to London to be at the hearing in order to give evidence in person. CN had waited all day, had not been reached, and was not able to attend on another day. Ms Mitchell-Dunn did not object to the application.

13. The Panel heard and accepted the advice of the Legal Assessor.

14. The Panel had been able to see CN on the first day of the hearing. It was satisfied that CN had attended in order to give evidence on the Registrant’s behalf, but was unable to return on a subsequent day due to his own commitments. The Panel also accepted that he was a significant witness of fact for the Registrant. It was unfortunate that the delays in the hearing meant that CN had not been reached. However, the Panel was satisfied that it was important for it to receive the evidence of CN, and the most appropriate way to do this, given that CN could not attend in person, was by way of telephone evidence.

Application by HCPC to adduce determination of previous Regulatory finding

15. At the close of the HCPC case, Ms Mitchell-Dunn applied to adduce in evidence the determination of a previous Regulatory finding, which resulted in a 5-year Caution being imposed on the Registrant’s HCPC registration on 8 March 2011. She submitted that the reasons it should be admitted were as follows:

• The Registrant had cross-examined Person A and challenged his credibility, and so it was appropriate that the Registrant’s previous Regulatory history, relevant to his own credibility, was before the Panel.

• To correct the information in the papers, to the effect that the Registrant had been banned for 5 years, when in fact it was a 5-year Caution, and there had been no Suspension or Strike Off from the HCPC Register.

16. The Registrant objected to the application, essentially submitting that it would be unfair for the Panel to admit the previous Regulatory finding.

17. The Panel heard and accepted the advice of the Legal Assessor.

18. The Panel determined to allow the fact of the Caution for a period of 5 years to be admitted in evidence. It was satisfied that the manner of the Registrant’s cross-examination of Person A was such that he was challenging the integrity and honesty of that witness. As such, it was appropriate to hear the context of the Registrant’s own character. The Panel was mindful that the determination included information about an allegation of dishonesty which had been found ‘not proved’ but that the determination had nevertheless cast doubt on the Registrant’s integrity. The Panel, as a professional panel, was satisfied that it would be able to put that part of the determination out of its mind and would not allow that part of the previous panel’s determination to prejudice it against the Registrant.

Background

19. The Registrant is a Biomedical Scientist registered with the HCPC. In around 2010, the Registrant graduated as a PhD student from Cranfield University, and Professor ST had been his second Academic Supervisor.

20. Person A was employed as a lecturer in Haematology and Blood Transfusion Science at a Nigerian University. In August 2008, he started a PhD in Haematology and Blood Transfusion at that University. In around April 2012, Person A approached the Registrant, when both were in Nigeria, for assistance in facilitating his research to successfully complete his PhD, which involved researching lectins extracted from snails.

21. It is alleged that the Registrant offered Person A the opportunity to complete his research at his laboratory facility based in Cranfield University Technology Park, as the equipment necessary for Person A to complete his PhD was not available in Nigeria. It is alleged that the two initially agreed that Person A would undertake bench work at the Registrant’s laboratory facility at Safety Biomedical Limited on the University Technology Park at Cranfield for a six-month period for a fee of £12,000, excluding accommodation.

22. In June 2013, Person A secured funding from the Nigerian Government in the form of a Tertiary Education Trust Fund (TET fund). It is alleged that, following this, Person A re-negotiated the agreement with the Registrant, via his company, Safety Biomedical Limited, to the effect that a revised fee of £9,200 would cover the one year’s research bench fee and the cost of accommodation for six months.

23. The sum of £9,200 was transferred to the Registrant by Person A. In respect of this it is alleged:

• That the Registrant knew he could not fulfil the agreement because the site did not have the necessary facilities; and

• The Registrant did not comply with the agreement because he did not provide a Supervised Research Training Programme nor did he provide accommodation.

24. It is further alleged that, following issues with the agreement between the Registrant and Person A, the Registrant agreed with Cranfield University to facilitate Person A’s Academic Visitor position within the University by paying £3,000, but he did not pay that sum, resulting in the termination of the agreement by the University.

25. It is further alleged that the Registrant’s actions were dishonest.

Decision on Facts

26. The Panel heard from Person A on behalf of the HCPC. It received a number of further witness statements as follows:

• Professor ST, Head of the Advanced Diagnostics and Sensors Group at Cranfield University, at the relevant time. Professor ST had been the Registrant’s second Academic Supervisor when the Registrant had been studying for his PhD at Cranfield University, graduating in 2010;

• SR, Finance Director of the School of Engineering at Cranfield University, at the relevant time, who produced invoices issued by the University; and

• LG, Legal Assistant at Kingsley Napley LLP, who produced emails sent between Professor ST and the Registrant.

27. The Panel was provided with a bundle of documents.

28. The Panel considered the evidence of Person A. The Panel had doubts about his credibility and found his evidence to be contradictory at times. There were a number of areas of his evidence where the Panel was not convinced by his stated inability to remember certain matters. For example, he could not remember the names or details of people he said had helped him when he first arrived in the UK; whether or not he had stayed with CN at his house, with CN and his wife; and who had brought the crude snail extract to the UK. Further, he appeared to change his evidence about CN under cross-examination and in answer to Panel questions. Initially he denied knowing him, or recognising him in a photo that he was shown, whereas he later seemed to accept knowing him.

29. In relation to the crude snail extract research materials, the email evidence before the Panel supported the proposition that the Registrant had brought it over in specialist temperature-controlled packaging. Person A’s evidence was that he (Person A) had brought the material over, then handed it to the Registrant, or possibly to a laboratory assistant, to put in the freezer. The Panel found this explanation improbable based on the email evidence and the fact that Person A said that he had not been met by the Registrant for some days following his arrival in the UK.

30. In relation to the payment of rent to the Landlord, in particular who was due to pay it, and who had paid it, Person A maintained that he had paid the rent, whereas the Registrant had copies of his bank statements indicating that he had paid it. There was an email dated 27 October 2013 from Person A to the Registrant asking him to help out by paying his Bedford rent for the next two months to save his embarrassment from the Landlord. This indicated to the Panel that Person A had been expecting to pay his own rent and the bank statements indicated that the Registrant had in fact paid the rent in October and November 2013.

31. The Panel next considered the evidence of the Registrant. It found that he, too, was inconsistent in his evidence and there were areas of his evidence which lacked credibility. For example, the Registrant maintained that he had made a prior arrangement with Professor ST for laboratory access and supervision for Person A, whereas the email evidence indicated that 10 September 2013, the day before Person A arrived in the UK, was the first approach that the Registrant had made to her. Also, the Registrant did not inform Person A that he did not have laboratory facilities at the Cranfield University Technology Park after December 2012, and tried to give the impression to Person A that he had “superb facilities”. The Panel noted that the Registrant continued to use the Safety Biomedical Limited company headed note paper in his correspondence with Person A, when that company was in the process of liquidation.

32. The Panel was of the view that the oral evidence of Person A and the Registrant was somewhat unreliable. In light of this, the Panel decided to treat the oral evidence of both these witnesses with circumspection, and check to see whether there was other evidence which either supported or undermined the evidence they gave. In this respect, the Panel placed a far greater reliance on the email correspondence and other contemporaneous documentary evidence.

33. The Panel considered the evidence of CN. It found him, on the whole, to be a credible witness, whose evidence it could accept. The Panel found him convincing in his explanation of how he knew Person A and how he knew Professor ST’s area of expertise. He was thoroughly cross-examined by Ms Mitchell-Dunn and his answers withstood the scrutiny. The Panel was satisfied that it could rely on his evidence where there was significant disagreement between the parties.

Particular 1 (stem) – Proved

1. On dates unknown between April 2012 and July 2013 you entered into an agreement to provide Person A with a Supervised Research Training Programme at Cranfield University Technology Park and accommodation in the United Kingdom, via your company Safety Biomedical Limited at a cost of £9,200, and:

34. The Panel considered the stem of particular 1. It noted that the original paperwork from 2012 indicated that the fee was set at £12,000. There was a letter dated 27 April 2012 from the Registrant to Person A, offering him the opportunity to conduct his research at his “state of the art” facility. There was an invoice to Person A from the Financial Controller at Safety Biomedical Limited, dated 24 May 2012, for £12,000.

35. Whilst there was no formal paperwork to the effect that the contract had been re-negotiated to £9,200 in 2013, the Panel was satisfied that it was more likely than not that the contract had been re-negotiated. In reaching this conclusion, the Panel had regard to a letter dated 11 July 2013 sent from the Registrant to Person A, which states: “I write to confirm that the sum of GBP9200 has been received into our bank account. The amount covers your Research Bench fee and Accommodation.” There is no qualification within the letter to the effect that there is a sum outstanding, nor is there any document chasing up an outstanding sum at any time until after Person A had complained about the Registrant on 14 November 2013. The Panel therefore concluded that £9,200 had been accepted by the Registrant in full settlement of his fees.

36. The first document chasing any outstanding sum is an email from the Registrant to Person A dated 15 November 2013. In this email, the Registrant states: “The charge for the project as contained in the invoice that was sent to ETF for funding was GBP12,000. I will make you learn the lesson the harder way … Secondly I will demand that your [sic] pay exactly the amount contained in the invoice I gave you.” The Panel inferred from this that in light of the disagreement between the Registrant and Person A, the Registrant had subsequently decided to revert to the original amount.

37. Therefore, the Panel was satisfied that, by 13 July 2013, the Registrant had entered into the agreement with Person A to provide Person A with a Supervised Research Training Programme at Cranfield University Technology Park and accommodation in the United Kingdom, via his company Safety Biomedical Limited, at a cost of £9,200.

Particular 1(a) – Proved

a) In doing so you knew you could not fulfil the agreement because the site did not have any or the necessary facilities;

38. The Panel finds particular 1(a) proved.

39. The documentary evidence before the Panel lists the Registrant’s company, Safety Biomedical Limited, as having the address of Innovation Centre, Cranfield University Technology Park, Cranfield. The invoice sent by Safety Biomedical Limited to Person A, dated 24 May 2012, contains the following qualification: “Please note that the [sic] Safety Biomedical Ltd is an independent Research laboratory situated at the Innovation Centre, Cranfield University Technology Park, Bedfordshire.” The letter sent by the Registrant to Person A, dated 12 June 2013, is on the Safety Biomedical Limited company headed note paper and has the Innovation Centre, Cranfield University Technology Park address. In this letter, it is written: “my laboratory is willing to accept you…”. The Registrant’s letter to the British Deputy High Commission, dated 11 July 2013, requesting a visa on Person A’s behalf, is on the Safety Biomedical Limited company headed note paper, with the same address, and says: “I write to confirm that [Person A] has been accepted for a [sic] research work in my laboratory”.

40. Person A told the Panel that Safety Biomedical Limited did not have a research laboratory on the Cranfield University Technology Park. The evidence before the Panel was that the Registrant had moved his laboratory out of the Cranfield University Technology Park and to Silsoe by December 2012 at the latest, and therefore there was no Safety Biomedical Limited laboratory at the Cranfield University Technology Park from, at the latest, December 2012. In light of these circumstances, the Panel was satisfied that the Registrant was not in a position to fulfil the agreement because the site (the Cranfield University Technology Park referred to in the stem) did not have any or the necessary facilities. The Panel was told that Cranfield University has its own biomedical laboratory facilities and this is where Person A eventually undertook his research. The Panel was satisfied that the Cranfield University laboratory was entirely separate from any laboratory owned by Safety Biomedical Limited.

Particular 1(b)(i) – Proved

b) you did not comply with the agreement, in that on or around September 2013:

i) you did not provide Person A with a Supervised Research Training Programme as agreed; and/or

41. The Panel finds particular 1(b)(i) proved.

42. The Registrant did not dispute that Person A did not start work in a laboratory until February 2014. Although the Panel was satisfied that the Registrant did arrange supervision for Person A in September 2013, the arrangement was that his research was to be supervised by Professor ST at the Cranfield University laboratory, for which the fee would be £3,000. In the absence of payment by the Registrant to the University of the agreed bench fees of £3,000, the Supervised Research Training Programme could not start until February 2014, when Person A paid the bench fee. Therefore, the Panel is satisfied that the Registrant had not provided Person A with a Supervised Research Training Programme as agreed.

Particular 1(b)(ii) – Not Proved

b) you did not comply with the agreement, in that on or around September 2013:

ii) you did not provide Person A with accommodation as agreed.

43. The Panel finds particular 1(b)(ii) not proved.

44. The Panel found the evidence of Person A in relation to his accommodation to be equivocal and contradictory, particularly on the question of who he stayed with for the first week of his arrival in the United Kingdom, and his denial of knowing CN. CN had told the Panel that the Registrant had asked him to provide accommodation to Person A. CN gave evidence that Person A had stayed with him and his family for the first week at his home. The Panel accepted his evidence on this point. He also gave evidence that the Registrant had then collected Person A from CN’s home in his car and taken him to Bedford to his new accommodation. The Panel has also seen copies of the Registrant’s bank statements which satisfied the Panel that he had made payments for Person A’s rent in October 2013 and November 2013.

45. In the circumstances, the Panel was not satisfied to the required standard that the Registrant did not provide Person A with accommodation as agreed.

Particular 2 – Proved

2. In or around November 2013 you did not fulfil your agreement with Cranfield University (the ‘University’) to facilitate Person A’s Academic Visitor position at the University, in that you did not pay the agreed sum of £3000, resulting in the termination of the agreement by the University.

46. The Panel finds particular 2 proved.

47. The Panel had regard to the email exchange between the Registrant and Professor ST in respect of Person A working within Professor ST’s laboratory at Cranfield University. In September 2013, the Registrant had contacted Professor ST to enquire if the University would host Person A as an Academic Visitor. She agreed and the University agreed that the Registrant’s other company, BioSystem Laboratories Ltd, would pay a bench fee of £1,000 per month for a three-month period. The Panel was satisfied that the Registrant had reached an agreement with the University for Person A to become an Academic Visitor on payment of £3,000 bench fees.

48. The Panel had regard to the evidence of SR, the University School of Engineering Finance Director. She said that on 10 October 2013, the University sent an invoice in the total sum of £3,000 to the Registrant’s company, BioSystem Laboratories Ltd, based in Flitwick, Bedfordshire. On 26 November 2013, the University sent Person A a letter to inform him that BioSystem Laboratories Ltd had not paid the invoice, and that without payment the invoice would be terminated. The invoice was cancelled on 18 December 2013 and Person A was therefore unable to undertake the research project with Professor ST at the University at that time because of non-payment of the invoice.

49. In the circumstances, the Panel was satisfied that the Registrant had not paid the £3,000 sum for bench fees to the University by 18 December 2013, as a result of which the University terminated the agreement.

Particular 3 – Proved

3. Following your non-fulfilment of the terms of the agreement detailed in (1) above, you did not return all of the monies paid to you by Person A.

50. The Panel finds particular 3 proved.

51. As found in particular 1, the Panel was satisfied that an agreement to provide a Supervised Research Training Programme for £9,200 had been reached between Person A and the Registrant. It was also satisfied from the documentary evidence that Person A had paid this sum into the Registrant’s bank account.

52. The Panel was satisfied from the documentary evidence that, after separate proceedings taken by Person A in Nigeria, the Registrant had paid ₦650,000 (Naira) into Person A’s bank account in January 2014. Person A said that this was equivalent to £2,305, which was reduced to £2,200 after bank transfer fees. The Registrant said that it was equivalent to £3,155. The reason for the discrepancy was that it was dependent on the exchange rate used. The residual amount left from the £9,200 paid by Person A was therefore either £7,000 or £6,045 depending on the exchange rate used. In relation to the outstanding sum, the Registrant’s position was that his company had incurred legitimate expenses in respect of Person A, including laboratory work, assistance with obtaining a research grant, flights, and visa. However, the Panel was provided with no documentary evidence itemising or invoicing such expenses.

53. The Panel was satisfied that even if some expenses had been incurred by the Registrant, there was at least a residual amount from the outstanding £7,000 or £6,045 paid by Person A which was not re-paid to Person A by the Registrant.

Particular 4 – Proved (in respect of particulars 1(a), 1(b)(i), and 2)

4. Your actions as detailed in (1), (2) and (3) above were dishonest.

54. The Panel finds particular 4 proved in respect of particulars 1(a), 1(b)(i), and 2.

55. In relation to particular 1(a), the Panel found that the Registrant’s actions were dishonest. It had regard to the letters which the Registrant had sent to Person A. On 27 April 2012, the Registrant had written to Person A on Safety Biomedical Limited company headed note paper, stating: “Our laboratory has state of the art facilities for analytical life sciences including instruments and expertise for affinity chromatography, ultra-centrifugation, SDS-PAGE, sugar residue analysis, tissue cultures and HPLC which are required for your project.” On 12 June 2013, the Registrant had written to Person A on Safety Biomedical Limited company headed note paper, stating: “I am glad to inform that my laboratory is willing to accept you for one year research work on the aforementioned PhD project.” On 11 July 2013, the Registrant had written to Person A on Safety Biomedical Limited company headed note paper, confirming “that the sum of GBP9200 has been received into our bank account. The amount covers your Research Bench fee and Accommodation.”

56. The Panel was satisfied from the evidence that, by the time of June 2013, Safety Biomedical Limited was in the process of liquidation, the final Winding Up Order being lodged at Companies House on 22 July 2013. The evidence from the Registrant was that his laboratory had moved from Cranfield University Technology Park to Silsoe by December 2012 at the latest. From this, the Panel inferred that the Registrant would have known, at the time that he offered the Supervised Research Training Programme in June 2013 and accepted the monies in July 2013, that he had no laboratory facilities at the Cranfield University Technology Park. In the view of the Panel, the use of Safety Biomedical Limited company headed note paper in June and July 2013 and the nature of the wording to the effect of “our laboratory” were deliberate, in that they were intended to persuade Person A to enter into the agreement and pay the research fee for the use of laboratory facilities at the Cranfield University Technology Park when he knew there were no such facilities. The Panel was satisfied that this went beyond mere carelessness on the Registrant’s part in his use of company headed note paper and wording. In the Panel’s view, by the standards of ordinary and decent people, the Registrant’s actions were dishonest.

57. In relation to particular 1(b)(i), the Panel found the Registrant’s actions were dishonest. The Panel had regard to the statement of Professor ST, who said that the Registrant had contacted her in September 2013 to find out whether the University would host Person A for a two to three month placement as an Academic Visitor. The Panel also had regard to the email sent to her from the Registrant, dated 10 September 2013, which, in the Panel’s view, demonstrated that the Registrant had not started making arrangements with Professor ST until that date. Person A arrived in the UK the following day, on 11 September 2013.

58. As the Registrant had no laboratory at the Cranfield University Technology Park, the Panel was satisfied that no Supervised Research Training Programme took place at the Cranfield University Technology Park, supervised either by the Registrant himself or by his company, Safety Biomedical Limited. The Registrant also accepted that no supervision had taken place at the Silsoe laboratory. It was clear to the Panel from the Registrant’s witness statement that he had never intended to supervise Person A personally. The Registrant’s contention was that, by arranging supervision through Professor ST, he had fulfilled the contract.

59. The Panel was satisfied that the provision of a Supervised Research Training Programme included both arranging such a programme as well as making the appropriate payment in order to allow it to take place. The Registrant had, as previously found by the Panel, arranged for Professor ST to supervise Person A on such a programme in a laboratory at Cranfield University. Further, the Panel was satisfied that the Registrant had agreed to pay the bench fee to the University of £3,000 as demonstrated by his email correspondence with Professor ST. His email to her dated 4 October 2013 asked for the invoice for the bench fee to be sent to his Nigerian company, Safety Molecular Path Lab, and gave the address of the University of Nigeria. That email stated “It is the Nigerian company that will be paying for the lab fee”. On 10 October 2013, the University invoiced the Registrant’s company, BioSystem Laboratories Ltd. The Registrant did not pay the £3,000 bench fees, and the invoice was cancelled on 18 December 2013. The supervision by Professor ST did not start until February 2014, after Person A had paid the £3,000 bench fees.

60. The Registrant gave the reason for the non-payment of the bench fees as his discovery, in October 2013, that Person A had in fact received the equivalent of £22,033 as a grant from the Nigerian TET fund, £12,000 of which the Registrant said was marked out for the host institution, and not a lesser sum as Person A had informed the Registrant. The Registrant’s position was that Person A had misappropriated the funds of the TET fund and, because of this, the Registrant had not paid his bench fees. The Panel made no finding in respect of whether or not there had been any misappropriation of funds by Person A. Regardless of the rights or wrongs of Person A in allowing the Registrant to believe that Person A had received a lesser sum through the TET fund, the Panel was not satisfied that this was a reason not to pay the bench fees, given that the Registrant had received payment of £9,200 intended to go towards that purpose. The Panel was satisfied that, by the standards of ordinary and decent people, the Registrant’s actions were dishonest. He had kept the £9,200 but had not paid the bench fee to enable the Supervised Research Training Programme to commence.

61. In relation to particular 2, the Panel found the Registrant’s actions were dishonest. The Panel had regard to the invoice for the bench fees, dated 10 October 2013, which had been sent by Cranfield University to the Registrant’s company, BioSystem Laboratories Ltd. By that date, while awaiting the bench fee payment, Professor ST said that Person A was registered with the University as a visiting Academic and was provided with a desk, access to University offices, provided with a computer and given access to the University IT system and an email address. The laboratory work could not commence as the bench fee had not been paid.

62. The Registrant had received £9,200 from Person A, but had not paid the £3,000 bench fees as he had agreed to do. The Registrant’s position was that he had used the money to pay for other items, albeit there was no documentation to itemise this or any invoice for such payments. In the Panel’s view, the Registrant had received a sum which was significantly higher than the sum he had agreed to pay in bench fees. The Panel was satisfied that the Registrant, having agreed to pay the bench fees, and having received money from Person A for that purpose, was obliged to do so. The Panel was satisfied that by the standards of ordinary and decent people, the Registrant was not entitled to receive the sum of £9,200 and then not pay the £3,000 as agreed, and that by doing so, he had acted dishonestly. In the Panel’s view, the Registrant’s subsequent repayment to Person A of £2,200 (according to Person A) or £3,155 (according to the Registrant) in January 2014 does not affect the position; the failure to pay the agreed £3,000 in or around November 2013 to the University was dishonest.

63. In relation to particular 3, the Panel found that the HCPC had not satisfied it to the required standard that the Registrant’s actions had been dishonest. In reaching this conclusion, the Panel recognised that the overall context for the Registrant’s dealings with Person A was as a business transaction. In this context there would be a margin of profit which a business, providing services, would be entitled to make. Ordinarily, if there was disagreement at the margin of that profit, then that would be a contractual dispute, as opposed to an issue of dishonesty.

64. The Panel had regard to the repayment that the Registrant had made to Person A in January 2014 of ₦650,000 (Naira) (equivalent to £2,200 according to Person A, or £3,155 according to the Registrant). The Panel was also satisfied that the Registrant had clearly incurred some expenses in respect to work undertaken for Person A, although it was not possible to quantify them in the absence of receipts or invoices. Those expenses included: receipt of the snail samples; homogenising; testing; and transporting them to the UK for lectin purification; as well as payments of rent for Person A.

65. The Panel had been satisfied in respect of particular 2 that the minimum sum which the Registrant should have paid out of the £9,200 that he had received from Person A was £3,000, to represent the bench fees which he had agreed to pay to the University. He did not pay that sum as agreed and by not paying that sum his actions had been dishonest. However, in respect of the residual amount of the £9,200 paid by Person A, the Panel acknowledged the context of the business transaction. The Panel could not assess how much of the residual amount of £7,000/£6,045 (depending on the exchange rate used) was spent by the Registrant on legitimate expenses which did eventually benefit Person A (e.g. processing the snail extract in Nigeria, bringing it to the UK, rent), and how much was taken as profit by the Registrant’s company. In the Panel’s opinion, these expenses were unlikely to have amounted to £7,000 or even £6,045; however, the Registrant’s company was entitled to make a profit from the contract with Person A. The Panel viewed any such profit as more appropriately a contractual matter than a Regulatory issue. It was therefore not satisfied that by the standards of ordinary and decent people, the Registrant’s actions in retaining some of the monies paid to him by Person A were dishonest.

Reconvened hearing (9-10 April 2018)

Preliminary Matters

66. The Registrant did not attend the reconvened hearing. Therefore the Panel reconsidered the matters of service and proceeding in the absence of the Registrant.

Service

67. On 1 November 2017, Notice of this hearing was sent by first class post to the Registrant’s registered address. A copy of the Notice was also sent by email. The Notice contained the required particulars.

68. The Panel was satisfied on the documentary evidence provided that the Registrant had been given proper Notice of this hearing in accordance with the Rules.

Proceeding in the absence of the Registrant

69. Ms Manning-Rees, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should only be exercised with the utmost care and caution.

70. The Panel was informed by Ms Manning-Rees that the Registrant had not been in contact with the HCPC since the case had been adjourned due to lack of time on 20 October 2017. She said that there had been no application for an adjournment by the Registrant, and that he had been present at the earlier part of the hearing when the date to which the hearing was to be adjourned was announced on the record. She submitted that the Registrant had, therefore, voluntarily waived his right to attend.

71. The Panel was satisfied that the HCPC had fulfilled its obligations and taken all reasonable steps to serve the Notice on the Registrant in accordance with the Rules.

72. The Panel, having been satisfied that the Registrant had been properly served the Notice by both first class post and email, concluded that the Registrant’s absence was voluntary, thereby waiving his right to attend. He had not communicated with the HCPC since the hearing had been adjourned, nor had he sought an adjournment. The Panel acknowledged that on a previous occasion the Registrant said he had not received HCPC emails in relation to an application for a video link. However, in addition to the usual methods of service, in this particular case the date for the resumed hearing was discussed with the Registrant and was announced in his presence at the end of the hearing (20 October 2017) and before the case was adjourned part-heard. The Panel checked the transcript and saw that the Hearings Officer had confirmed the dates of 9 and 10 April 2018 with the Scheduling team, who were able to accommodate these dates for the resumed hearing. In respect of the dates, she said that “all parties have confirmed that”. None of the parties, including the Registrant, had raised any objection to these dates.

73. The Panel was mindful that the proceedings had been ongoing for a considerable length of time, and it was in the public interest for them to be concluded. In light of the Registrant having waived his right to attend, the Panel considered that the public interest for the hearing to take place outweighed any disadvantage to the Registrant in proceeding in his absence.

Decision on Grounds

74. The Panel considered whether the facts found proved amounted to misconduct. The Panel considered the following HCPC “Standards of Conduct, Performance and Ethics” as a whole, and considered that the following standards were relevant:

• Standard 3 – You must keep high standards of personal conduct;

• Standard 7 – You must communicate properly and effectively with service users and other practitioners; and

• Standard 13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

75. In considering particulars 1(a) and 1(b)(i), in respect of which the Panel had found the Registrant’s actions to have been dishonest, the Panel was of the view that the Registrant’s actions had breached Standards 3, 7 and 13. The Registrant had used company headed note paper for a company which was in liquidation, in correspondence with Person A about providing a Supervised Research Training Programme, which he knew he was not able to fulfil because his Cranfield laboratory no longer existed. In the Panel’s judgement, the Registrant’s communications were designed to mislead Person A into believing that the Registrant had a laboratory where he could conduct such a programme. By acting dishonestly, the Registrant had not kept high standards of personal conduct. By using the company headed note paper, and misleading Person A about the facilities the Registrant was in a position to provide, he had not communicated properly with another practitioner. Further, in not behaving honestly, the Registrant had damaged the public’s confidence in both him and his profession. As such, it was the Panel’s view that his actions fell far below the standards required of a registered professional and were sufficiently serious to amount to misconduct.

76. In considering particular 2, in respect of which the Panel had also found the Registrant’s actions to have been dishonest, the Panel was of the view that the Registrant’s actions had breached Standards 3, 7 and 13. The Registrant’s failure to fulfil his agreement with Cranfield University took place in the context of having previously acted dishonestly in not fulfilling the agreement with Person A directly (by not providing supervision in his own laboratory). The Registrant had then said that he would pay the £3,000 bench fees to the University, but did not do so, which had led to the agreement being terminated by the University. In acting dishonestly again, the Registrant had not kept high standards of personal conduct. By agreeing with Professor ST to pay the £3,000 to facilitate Person A’s research programme and then failing to do so, the Registrant had not communicated properly with another practitioner. Further, in not behaving honestly, the Registrant had damaged the public’s confidence in both him and his profession. As such, it was the Panel’s view that his actions fell far below the standards required of a registered professional and were sufficiently serious to amount to misconduct.

77. In respect of particular 3, although the Panel had not found that the Registrant’s actions had been dishonest, the Panel was nevertheless of the view that the Registrant’s actions had fallen far below the standards to be expected of a registered professional and breached Standards 3 and 13. The Registrant had not paid back the residual amount of money to Person A, nor had he provided itemised receipts or other evidence to justify his retention of a sum of money. The amounts in issue were significant. The Panel had found that there was a residual sum that the Registrant had not been entitled to retain. In the Panel’s judgement, the Registrant’s failure to return that sum to Person A, or account for it through proper itemised receipts, meant that he had not kept high standards of personal conduct, and such behaviour would damage the public’s confidence in him and his profession.

78. In the Panel’s judgement, the Registrant’s actions were serious both in themselves and cumulatively, such that they fell far below the standards of conduct and behaviour expected of a Biomedical Scientist. In the Panel’s judgement, they were serious enough to amount to misconduct.

Decision on Impairment

79. The Panel had regard to the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”, and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.

80. The Panel first considered the ‘personal component’.

81. The Panel considered whether there had been any demonstration of insight on the part of the Registrant. In the absence of the Registrant at the resumed hearing, the Panel reviewed his oral evidence and written submissions given at the fact-finding stage. It noted that the Registrant had denied the allegations throughout the proceedings. Both his written statement and his oral evidence had sought to justify his actions and legitimise his behaviour, behaviour which the Panel had found included dishonesty. Furthermore, the Registrant had also made several counter-allegations during the course of the hearing, and had sought to blame others, including Person A, the HCPC and the police.

82. The Panel considered whether there had been any remediation. It noted that the evidence was that the Registrant had repaid a sum of money to Person A in January 2014. The Panel considered whether this demonstrated remediation on the part of the Registrant, and looked at the reasons why this sum had been repaid. The Registrant’s explanation in his oral evidence was that this sum had been repaid following an agreement reached in Nigeria, when the Nigerian police advised the parties to resolve the matter and maintain peace. The Panel concluded that this did not demonstrate remediation on the part of the Registrant, as there was no concession by him that this was a sum that he required to repay as a consequence of not fulfilling his agreement with Person A.

83. The Panel concluded that there was no insight, remorse or effective remediation demonstrated by the Registrant. It also had regard to the fact that the Registrant had been subject to an HCPC Caution Order for 5 years, imposed in March 2011, at the time of these matters. In all the circumstances, the Panel was of the view that there remained a risk of repetition, and therefore concluded that in respect of the personal component, his fitness to practise is currently impaired.

84. The Panel went on to consider the ‘public component’.

85. The Panel was of the view that this was not a case which involved a risk of harm to the public or patients. However, it concluded that the Registrant’s conduct, which included dishonesty, breached a fundamental tenet of the profession and had brought the profession into disrepute. The Panel, therefore, concluded that public confidence in the reputation of the profession would be undermined if a finding of impairment were not made in this particular case. Similarly, the Panel concluded that professional standards would be undermined if it did not make a finding of impairment.

86. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired in respect of the ‘public component’.

Decision on Sanction

87. Having determined that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on his registration by way of the imposition of a sanction.

88. The Panel heard and accepted the advice of the Legal Assessor and it exercised its independent judgement. The Panel had regard to the HCPC Indicative Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

89. The Panel considered the main mitigating and aggravating factors in this case. It considered that the mitigation was the personal circumstances of the Registrant, who had suffered recent family illness and bereavement at the time. The Panel considered the following to be the main aggravating factors in this case:

• The Registrant’s dishonesty was for financial gain, in respect of significant sums of money;

• The Registrant’s dishonesty was repeated, taking place over a period of months;

• The Registrant had sought to justify his actions and to blame others;

• There was an absence of insight or remorse, and the Registrant maintained his denials throughout; and

• The Registrant was subject to a 5-year HCPC Caution Order at the time.

90. The Panel was of the view that the seriousness of the case meant that some form of sanction was required, and so the options of taking no further action or mediation were inappropriate. The Panel therefore considered the sanctions available, beginning with the least restrictive.

91. In considering whether a Caution Order may be appropriate, the Panel had regard to paragraph 22 of the Policy, 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 remedial action.”

92. The Panel was of the view that none of these factors, which might indicate that a Caution Order was appropriate, were present in this case. The misconduct was not an isolated, limited or relatively minor lapse; rather, it included repeated dishonesty, for financial gain. In light of the absence of evidence of insight, remorse or remediation, the Panel had earlier concluded that there remained a risk of repetition. Further, the Panel noted that the Registrant had been subject to a 5-year Caution Order at the time of the incidents, and such an order had not, in the Panel’s view, been effective.

93. The Panel next considered the imposition of a Conditions of Practice Order. It was of the view that the misconduct found did not relate to practice issues. In light of the findings of dishonesty, the Panel was not satisfied that there were conditions which could be formulated to address this. Further, in the absence of evidence of insight, remorse or remediation, the Panel did not consider that a Conditions of Practice Order was workable. In any event, the seriousness of the misconduct was such that the Panel was of the view that there were no conditions which could be formulated which were appropriate, realistic, verifiable or workable to satisfactorily safeguard the public interest. The Panel concluded that a Conditions of Practice Order would neither reflect the seriousness of the case nor satisfy the public interest aspect of this case, namely the need to maintain public confidence in the profession.

94. The Panel next considered a Suspension Order. The Panel noted that the previous Caution Order, imposed in 2011, had been imposed for misconduct which involved forging the signature of a senior member of staff on time sheets at a previous place of employment, and fraudulently claiming to be working when not at work. Although the panel in that case had made the finding that there was no dishonesty, the Panel in this case noted that there were a number of features which were similar in both cases. These similarities were that the Registrant had obtained a financial benefit to which he was not entitled; the Registrant had displayed little insight for his actions; and the previous panel had stated that his integrity could not be relied upon. The Panel considered that the terms of the previous determination had put the Registrant on notice of the high standards which are expected of a registered professional. The previous determination had ended: “It is to be hoped [the Registrant] will practice at the highest standards in the future”.

95. The Panel considered that paragraph 39 of the Policy was particularly relevant: “Suspension should be considered where the Panel considers … the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited.” In this case, the Panel had found that the misconduct, which included dishonesty, was of a serious nature, but in the absence of insight, remorse and remediation, the Panel had been unable to conclude that it was unlikely to be repeated. Further, in light of the previous Caution Order, the Panel took into account that there had been a repetition of misconduct. In all the circumstances, the Panel did not consider that a Suspension Order was sufficient or appropriate in this case.

96. The Panel considered a Striking Off Order and concluded that this was the only appropriate and proportionate sanction in this case. In reaching this decision, the Panel had regard to paragraph 47 of the Policy, which states: “Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as … dishonesty … or persistent failure.”

97. The Panel was satisfied that this was a case which fell into this identified category, due to the nature of the dishonesty found proved. In relation to the dishonesty, it noted that it was for financial gain; had been repeated; and was carried out when the Registrant was subject to a Caution Order. In light of this, the Panel was of the view that the dishonesty was at the higher end of the scale of seriousness and that only a Striking Off Order would address the wider public interest and risk of repetition of dishonest behaviour.

98. The Panel also had regard to paragraph 49 of the Policy, which states: “Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process…”

99. For the reasons previously given, the Panel was of the view that the nature and gravity of the Registrant’s misconduct is such that a Striking Off Order is required. It was clear to the Panel that any reasonably well-informed member of the public would be profoundly concerned if a Biomedical Scientist, who had been found to have acted dishonestly in the manner set out above, were not removed from the Register.

100. In terms of the principle of proportionality, the Panel noted that the Registrant would be prevented from working in the profession by this Order. However, it was of the view that the high public interest of maintaining public confidence in the profession outweighs his own interests.

Order

The Registrar is directed to strike the name of Mr Emmanuel O Nna from the Register on the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Emmanuel O. Nna

Date Panel Hearing type Outcomes / Status
09/04/2018 Conduct and Competence Committee Final Hearing Struck off