Miss Chinele Ukachukwu

Profession: Biomedical scientist

Registration Number: BS36816

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 12/04/2018 End: 16:00 13/04/2018

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

The Panel confirmed the following allegation:

1. On 14 June 2013 at Harrow Crown Court you were convicted of 9 x Making a false statement/representation so as to obtain benefit

2. Between 14 June 2013 and 23 December 2016 you did not advise the HCPC of your conviction

3. On or around 23 October 2013 you advised the HCPC that there had been no change to your good character since your last registration

4. On or around 25 October 2015 you advised the HCPC that there had been no change to your good character since your last registration

5. Your actions described in paragraphs 2-4 were dishonest

6. The matters described in paragraphs 2-5 constitute misconduct

7. By reason of your conviction as set out at paragraph 1 your fitness to practise as a Biomedical Scientist is impaired

8. By reason of your misconduct your fitness to practice as a Biomedical Scientist is impaired

Finding

Preliminary Matters

Application to amend the Allegation

1. Mr Ferson made an application to amend the Allegation. He referred the Panel to a letter to the Registrant dated 4 August 2017 which gave her notice of the proposed amendments. Mr Ferson also explained the reasons the HCPC is offering no evidence on particular 4. There had been no change in the Registrant’s character between 2013 and 2015 and therefore there was nothing new for her to declare. The mischief of the failure to declare the conviction to the HCPC over a period of time was captured in particular 2.

2. Ms Ukachukwu did not object to the proposed amendments.

3. The Panel accepted the advice of the Legal Assessor.

4. The Panel decided that there was no unfairness to the Registrant and that it was appropriate to allow the amendments. The amendments clarify the Allegation, but do not make substantive changes.


Background

5. The Registrant is a Biomedical Scientist and was first registered by the HCPC on 5 November 1990. In December 2016, the Registrant’s employer, Viapath, informed the HCPC that the Registrant had been convicted for fraud in 2013. The HCPC obtained a Certificate of Conviction from Harrow Crown Court stating that the Registrant was convicted on 23 May 2013 for the offence of 9 counts of making a false statement/representation so as to obtain benefit. The Registrant was sentenced to 12 months imprisonment suspended for 24 months and a requirement to carry out 220 hours of unpaid work.

6. All HCPC registrants are invited to renew their registration every two years. Part of the application process requires registrants to disclose any criminal convictions or cautions. The Registrant renewed her registration with the HCPC by postal application dated 23 October 2013. In the application form, the Registrant did not declare that she had received any previous convictions on cautions. There is also no record of the Registrant contacting the HCPC Registrations Department prior to her employer advising the HCPC on 23 December 2016 of her conviction.


Registrant’s Admissions

7. At the start of the hearing, the Registrant admitted particulars 1, 2, 3, and 5.
 

Decision on Facts

8. The Panel read the witness statement of SY, an HCPC Registration Manager. SY described the process by which registrants apply to renew their registration every two years and he referred to the documentary evidence of the Registrant’s contact with the HCPC. SY was not called to give oral evidence. The Panel read the HCPC exhibits bundle.

9. The Panel heard evidence from the Registrant. The Panel had reservations about the reliability and credibility of the Registrant’s evidence. The Panel found that the Registrant’s evidence was inconsistent and unclear. The Registrant’s evidence about the date she decided not to continue to pursue an appeal against her conviction was particularly unclear and there were discrepancies in her answers.

Particular 1

10. The Panel found particular 1 proved by the Certificate of Conviction from Harrow Crown Court issued on 27 January 2017, showing the date of conviction as 23 May 2013.

Particular 2

11. The Panel found particular 2 proved by the statement of SY, the documentary evidence, the Registrant’s evidence and the admission of the Registrant.

Particular 3

12. The Panel found particular 3 proved by the statement of SY, the documentary evidence, the Registrant’s evidence and the admission of the Registrant.

13. The Registrant completed a renewal form dated 23 October 2013, which included the following declaration: “since my last registration there has been no change to my good character (this includes any conviction or caution, if any, that you are required to disclose)”. The Registrant declared that this information was true and accurate. This declaration was untrue because the Registrant had been convicted of a criminal offence. In her oral evidence, the Registrant confirmed that she signed the renewal form.

Particular 5

14. The Panel accepted the advice of the Legal Assessor, that when considering dishonesty it should apply the guidance in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. The Panel first considered the Registrant’s state of knowledge or belief as to the facts. It then considered, in the light of her state of mind, whether her conduct was honest or dishonest applying the objective standards of ordinary reasonable people.

Particular 2 – Dishonesty

15. The Panel considered that the Registrant’s state of knowledge differed in relation to three periods of time.

16. The first period of time was from 23 May 2013 until the Registrant completed the HCPC renewal form on 23 October 2013. During the whole of this time the Registrant was considering or pursuing an appeal against her conviction.

17. The Registrant confirmed that she was aware of the HCPC Standards of Conduct, Performance, and Ethics (the Standards). Standard 4 of the 2012 Standards required the Registrant to “let us know straight away if you are: -convicted of a criminal offence…”  Standard 9.5 of the 2016 Standards required the Registrant to “tell us as soon as possible if: - you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence”. The Registrant understood that she had a professional obligation to inform her employer and the HCPC of the conviction. In her oral evidence, the Registrant explained that she informed her line manager of her conviction because she was aware of her professional obligations.

18. There is evidence to corroborate that the Registrant spoke to her line manager and informed him of her conviction. In her oral evidence, the Registrant told the Panel that her conversation with her line manager extended to a discussion with him about making a referral to the HCPC. She told the Panel that she reached an agreement with her manager that there was no need to refer the conviction to the HCPC while the appeal proceedings were underway. There is no evidence to corroborate the Registrant’s evidence, and no evidence which directly contradicts her account. The first time the Registrant mentioned the agreement with her line manager not to make a referral to the HCPC was in her oral evidence.

19. The investigation carried out by Viapath included confirmation that the Registrant spoke to her line manager. It also included evidence that the personality of the Registrant’s line manager meant that it was highly likely that he did not report the information to higher management. The Panel noted that it was for the HCPC to prove the fact of dishonesty. The evidence as to whether the Registrant had actively considered reporting to the HCPC in these first few months after her conviction was not compelling. On balance, the Panel found that the Registrant had not yet consciously decided not to notify the HCPC. Ordinary decent people would therefore find that her actions in not informing the HCPC up to 23 October 2013 were not dishonest.

20. The second period of time is from 23 October 2013 to the date the Registrant decided not to continue her appeal against her conviction (likely to be during the summer of 2016 and no later than 21 September 2016). During this period of time, the Panel found that the Registrant understood that she was under a personal obligation to inform the HCPC about her conviction, because on 23 October 2013 the Registrant completed the HCPC renewal form. The wording of the renewal form was very clear and she had access to guidance on character declarations. The form also explicitly invited registrants to contact the Registrar if they were doubtful about how to proceed, so she could have contacted the HCPC for advice about whether to report a conviction that was being appealed. During this second period of time, the Registrant must have been deliberately withholding her conviction from the HCPC.

21. The third period of time is from the date the Registrant decided not to continue her appeal against her conviction until 23 December 2016. The date the Registrant decided not to appeal against her conviction is unclear, but the Panel has concluded that it was no later than 21 September 2016. The Registrant explained that after she decided not to pursue her appeal she entered into negotiations with the London Regional Confiscation Unit with respect to repayment of the money received as a result of the benefit fraud. The Registrant provided the Panel with a letter from the Confiscation Unit confirming the sum due and the arrangements for repayment. The letter was dated 21 September 2016, so the Panel concluded that the Registrant must therefore have discontinued her appeal prior to this date.

22. The Panel concluded that during this third period of time the Registrant knew, even on her own account, that she had the responsibility to inform the HCPC of her conviction, since her appeal was no longer ongoing. Despite this, the Registrant still failed to inform the HCPC. The Registrant referred to a period when she was out of the country, in October 2016, but this does not explain why she did not make a declaration to the HCPC before or after that trip, when she knew she had an obligation to do so.

23. Applying the objective standards of ordinary decent people, the Panel found that the Registrant’s conduct in failing to declare her conviction to the HCPC was dishonest from 23 October 2016. The Panel therefore found this Particular partially proved.

Particular 3 – Dishonesty

24. The Panel found that the Registrant understood the meaning of the declaration she was making when she completed the HCPC renewal form on 23 October 2013. The wording of the form is very clear. The form also advised the Registrant that if she could not sign the declaration she should contact the Registrar in writing, explaining her circumstances. The Registrant accepted in her oral evidence that she was being untruthful when she signed the form.

25. Taking into account the Registrant’s state of mind at the time, the Panel found that the Registrant’s conduct in advising the HCPC that there had been no change in her character was dishonest, applying the objective standards of ordinary decent people.


Decision on Grounds

27. The question of whether the proven facts constitute misconduct is for the judgment of the Panel and there is no burden or standard of proof.

28. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances…”. The conduct must be serious in that it falls well below the required standards.

29. In reaching its conclusions that the proven facts in particulars 2 and 3 constituted misconduct, the Panel considered that the Registrant’s actions and failures breached standard 4 of the 2012 Standards and standard 9.5 of the 2016 Standards of Conduct Performance and Ethics.

30. The Registrant’s conduct in particular 2 involved a time period of over three years, during which the Registrant misled the HCPC. During this time, there was a change in circumstances and in the Panel’s judgement the dishonesty became more serious as time passed. The conduct in particular 3 involved the Registrant making a positive statement to the HCPC; it was an action rather than an omission. Both particulars are particularly concerning because they had the effect that the Registrant’s name remained on the Register for a long period of time while the HCPC had no knowledge of the conviction. The HCPC had no opportunity to consider whether the conviction involved issues of public protection. The conviction only came to the attention of the HCPC when Viapath made a referral.

31. The dishonesty the Panel has found in relation to both particulars is serious. The HCPC relies on Registrants to be open and honest. This is a fundamental element of the membership of the profession. When the Registrant lied to the HCPC she breached the trust that was placed in her.

32. The Panel found that the Registrant’s conduct in particulars 2, 3 and 5 fell well below the required standards and would be regarded as deplorable by fellow practitioners. The Panel concluded that the conduct was sufficiently serious to constitute misconduct.


Decision on Impairment
 
33. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPTS Practice Notes on “Conviction and Caution Allegations” and “Finding that Fitness to Practise is Impaired”. The Panel considered the Registrant’s fitness to practise at today’s date.

34. The Panel noted that there are no concerns about the Registrant’s work as a Biomedical Scientist and that her current employer has raised no concerns. The information provided by the Head of Service at Viapath Laboratory where the Registrant works, informed the HCPC that “there have never been any questions asked about [the Registrant’s] fitness to practice and her manager has described her as being a reliable member of staff”.

35. The Panel considered the nature, circumstances, and gravity of the Registrant’s conviction. The Registrant pleaded not guilty, but was found guilty at a jury trial.

36. The facts of the conviction are set out in the indictment. The particulars of each of the 9 counts were:

“on or about [a date], with a view to obtaining for herself or for some other person any benefit or payment or advantage under the relevant social security legislation, dishonestly made a false representation in an application for [Housing and Council Tax Benefit/Income Support]….whereby she declared that the information she had provided in the application was correct and complete whereas:

a. She failed to declare that she had a partner who normally lived with her; and/or

b. She stated that her landlord was [Name 1] when her landlord was in fact [Person A]; and or

c. She stated that neither she, nor her children, were related to the landlord when in fact the landlord was her partner and the father of her children”

37. The case summary explains that the Registrant first began claiming Housing and Council Tax Benefit in September 2003 on the basis that she was the single parent of three children and in receipt of Income Support. She further stated on the claim form that her landlord was Name 1. She submitted seven further Housing and Council Tax Benefit forms between February 2005 and 10 December 2010 stating that she was paying rent to a private landlord and that her children were not related to the landlord. The Registrant also claimed Income Support from 16 November 2010. On 30 October 2010, the Council received a data match referral which identified that there was an undeclared person by the name of Person A who was credit active at the Registrant’s address. A land registry check revealed that Person A had owned the property since 3 September 2003. Person A was the Registrant’s husband.

38. The Registrant’s failure to declare that the owner of the property was her husband and father of her children, resulted in an overpayment of benefits in the sum of £82,144.67. Although the Panel received evidence that the repayment agreed by the Registrant is for a lesser sum, the Panel noted that the Registrant was sentenced on the basis of a total sum of approximately £83,000 as set out in the sentencing transcript.

39. The sentencing Judge took the view that the matter was serious because it involved a large sum of money and “was, in my judgment, quite deliberate dishonesty involving a degree of planning”. The sentencing Judge described the period of seven years of offending as a “scam dishonest from beginning to end”. The sentencing judge concluded that the offences passed the custody threshold. The only reason an immediate custodial sentence was not imposed on the Registrant was because she had the care of a very young child. The sentencing Judge was therefore persuaded that the custodial sentence should be suspended.

40. The Panel considered that the conviction was very serious, involving repeated deliberate dishonesty over a long period of seven years. The Panel considered that if the Registrant was making a first time application to be registered with the HCPC, her character is such that she would not be permitted to register.

41. In her evidence, the Registrant was given the opportunity to explain how she feels now about the past events, and what she has learned. The Registrant states that she now accepts the conviction, but she does not agree that she was dishonest. In her evidence and in her submissions the Registrant did not fully accept her accountability or the seriousness of her conviction. The Registrant did not explain any changes she has made to her attitude or behaviour which would prevent future dishonest behaviour.

42. The Panel noted that the Registrant pleaded not guilty to all nine counts. This was despite the fact that in her police interview she appeared to accept that in the last two years of her Housing Benefit claims she knew she was making a false declaration and knew that this was wrong. In her submissions to the Panel, the Registrant gave the Panel an explanation of her position in relation to the conviction, but she did not make the same acknowledgements she had made in her police interview in relation to the last two years of her claims. The Registrant emphasised to the Panel that the money she had received had not gone directly to her purse, but had paid the “rent”. In the view of the Panel, this submission indicated a lack of insight into the conviction.

43. The Panel noted that at the outset of the hearing the Registrant admitted particulars 2, 3 and 5. This includes the allegation of dishonesty. This indicates that she has some insight. However, in her evidence the Registrant was reluctant to agree that she had lied to the HCPC. She did not appear to recognise the seriousness of her conduct or the impact of making a false declaration to the HCPC.

44. The Panel noted that although the Registrant at no point informed the HCPC, she had promptly notified her manager at work of her conviction. It also noted that, as far as the employer was concerned, there had been no fitness to practise issues at work, and the Registrant was regarded as reliable.

45. The Panel nevertheless, found limited evidence that the Registrant has real insight into what she has done or its impact. The Registrant’s dishonesty has been repeated in different areas, including the professional area. The Registrant has made false declarations when claiming benefits and made a false declaration to her regulator to conceal her conviction. There was little evidence of any substantial change in her attitude. The Panel found that there was a risk of repetition of dishonest conduct.

46. The Panel considered the wider public interest considerations, including the need to maintain public confidence in the profession and to uphold standards of conduct and behaviour. The Registrant’s criminal and dishonest conduct has brought the profession into disrepute and any repetition of dishonest behaviour would cause further damage. The nature of the criminal conduct in this case would be of concern to an informed member of the public because it involves a large sum of public money and deliberate dishonesty.

47. The Registrant’s dishonest conduct, both the conviction and the dishonesty to the HCPC, involves a serious breach of the HCPC Standards. It is necessary for the Panel to mark the seriousness of the Registrant’s departure from the required standards in its consideration of her current fitness to practise.

48. The Panel concluded that public confidence in the profession would be undermined if the Panel did not make a finding that the Registrant’s fitness to practise is currently impaired.

49. The Panel found that the Registrant’s fitness to practise is impaired on the basis of the personal component and the public component.


Decision on Sanction

50. In considering which, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.

51. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances, commensurate with its duty of protection.

52. The Panel heard submissions from Mr Ferson and the Registrant. The Registrant expressed her remorse and apologised for her personal and professional failings.

53. The Panel decided that the aggravating features were:

• the seriousness of the conviction involving multiple counts of dishonest conduct over a seven year period;

• a pattern of repeated dishonest behaviour, including concealing her conviction from the HCPC for more than 3 years.

• the Registrant’s limited insight and the risk of repetition.

54. The Panel decided that the mitigating features were:

• the Registrant informed her manager of her conviction;

• the Registrant’s previous good character;

• the Registrant’s continuing work at Viapath with no issues;

• evidence in the Viapath investigation from JM, Operations Lead Immunodermatology, that the Registrant was "well-liked, reliable, and hard-working member of staff and that he had no reason to doubt her integrity in the workplace”.

55. The Panel’s conclusion that there is a risk of repetition of dishonesty involves a risk for the public. Although there is evidence from the Registrant’s employer that there have been no concerns about her integrity in the workplace, the Panel was unable to exclude the possibility that dishonest behaviour could occur in the workplace.
 
56. The seriousness of this case meant that taking no action or mediation would not provide adequate protection for the public or the required degree of public reassurance.

57. The Panel considered a Caution Order, but decided that it would not be sufficient or appropriate. The Registrant has limited insight and there is a risk of repetition. A Caution Order would also not be sufficient to maintain confidence in the profession and the regulatory process, given the seriousness of the misconduct.

58. The Panel next considered a Conditions of Practice Order. The Registrant invited the Panel to consider imposing conditions. The Panel did not consider that it was possible to address the risk of repetition of dishonest behaviour through conditions. Conditions could not address the Registrant’s behaviour outside the workplace and the Panel were unable to formulate workable conditions.

59. The Panel considered the more serious option of a Suspension Order. Dishonesty, by its nature, is difficult to remedy. The Panel’s view was that the dishonesty in this case was particularly difficult to remedy because it involved deliberate planned acts. The deliberate dishonesty involving the HCPC arose after the Registrant had been tried, convicted, and sentenced for a criminal offence involving dishonesty. Despite this clear warning, the Registrant repeated dishonest behaviour. This conduct, together with the concerns the Panel had about the Registrant’s credibility, indicates that there may be an attitudinal issue.

60. The Panel considered carefully the apparent conflict between the Registrant’s conduct and the positive information from the Registrant’s employer. The description of the Registrant by her employer is not easily reconcilable with the Registrant’s conviction, her dishonest concealing of her conviction, or her evidence to the Panel. While it appears that the Registrant has not been dishonest at work and there are no concerns, the Panel considered that it was relevant, but of limited weight. This was so particularly because the nature of dishonesty is that it can occur in a wide range of contexts. There was no evidence that the Registrant’s integrity at work had been tested by any circumstance in which she was required to act openly and against her own personal interest.

61. The Panel also carefully evaluated the mitigating circumstance that the Registrant informed her line manager of her conviction. The Panel carefully considered whether the Registrant might have been misled by her line manager or by Viapath into believing that her conviction was not serious from a professional point of view. The Panel considered whether it was possible that this may have affected the Registrant’s attitude and level of insight. The Registrant did not suggest that her employer’s reaction has affected her view of the seriousness of her conviction. The Panel noted that the Registrant’s insight was not restricted to the HCPC hearing. The sentencing judge at the criminal trial commented that he was puzzled by the Registrant’s continuing denials and described the Registrant as coming across as “almost self-righteous”.

62. The Panel noted the Registrant’s expression of remorse and apology, together with her admissions. This is positive, but the Panel had to assess whether there was a real prospect of rehabilitation in this case and whether the Registrant’s conviction and misconduct were so serious that they are fundamentally incompatible with registration.

63. The Panel considered carefully whether there was a real prospect of the Registrant demonstrating to a future reviewing panel that the risk of repetition was sufficiently low that she was safe to return to practise. The Panel considered whether there was any remedial action the Registrant might take or evidence she might present. A particular concern in this case is the pattern of repeated dishonesty and dishonesty after the conviction. After careful deliberation, the Panel concluded that there is not a real prospect.

64. The Panel also considered the wider public interest considerations. The Panel considered that if the sole issue was the conviction and if the Registrant had demonstrated sufficient insight, a Suspension Order might have been sufficient to maintain public confidence in the profession. Unfortunately, this case is more serious because of the further dishonesty by the Registrant in concealing her conviction from the HCPC. The consequence of the Registrant’s failure to disclose her conviction to the HCPC is that the seriousness of the conviction is being considered by the Panel many years after sentencing. This delay, and the time that the Registrant has worked as a Biomedical Scientist without restriction has limited weight when considering the seriousness of the conviction, because the delay has occurred due to the Registrant’s misconduct.

65. The Panel therefore concluded that a Suspension Order is not sufficient or appropriate. This decision has very serious consequences for the Registrant. The more serious sanction of a Striking Off Order will prevent the Registrant working as a Biomedical Scientist for at least five years. It will have serious financial consequences for the Registrant and it will deprive her of the opportunity to practise her chosen profession. The Panel considered these consequences, but decided that public protection, including the need to maintain public confidence in the profession and the regulatory process, outweighed the Registrant’s interests.

66. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Order

The Registrar is directed to strike the name of Chinele Ukachukwu from the Register from the date this Order takes effect.

Notes

Interim Order:

1. Mr Ferson made an application for an interim Suspension Order on the grounds that it was necessary for the protection of the public and was otherwise in the public interest. He submitted that not to impose an Interim Order would be inconsistent with the Panel’s reasons for imposing the sanction of a Striking-Off Order.

2. The Panel accepted the advice of the Legal Assessor.

3. The Panel decided that an Interim Order is necessary for the protection of the public. The Panel has identified a potential risk to the public because there remains a risk of repetition of dishonesty. The Panel also considered that the high threshold for imposing an Interim Order in the public interest was met because of the ongoing risk of repetition of dishonesty and the public perception should the Registrant continue to work as Biomedical Scientist for a lengthy period of time while an appeal is ongoing. The Panel considered the implications of an Interim Suspension Order on the Registrant. They are serious, but they are outweighed by the need to protect the public and the wider public interest. 

4. The Panel considered an Interim Conditions of Practice Order, but was not able to formulate conditions to address the risk of repeated dishonesty.

5. The Panel decided to make the Order for a period of 18 months, the maximum duration, to allow sufficient time for any appeal to be disposed of.

6. The Panel therefore made an Interim Suspension Order for a period of 18 months.

7. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Miss Chinele Ukachukwu

Date Panel Hearing type Outcomes / Status
12/04/2018 Conduct and Competence Committee Final Hearing Struck off