Mr Eric C Simons
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Whilst registered as a Biomedical Scientist:
1) On 31 October 2016 at Nottingham Magistrates’ Court, you received a Conditional Discharge for:
a) On 16 April 2016 at [address], assaulted Victim by beating her. Contrary to Section 39 of the Criminal Justice Act 1988;
b) On 03 May 2016 at [address], assaulted Victim by beating her. Contrary to Section 39 of the Criminal Justice Act 1988.
2) During the course of your employment with Nottingham University NHS Trust:
a) on 14 January 2016, you:
i) did not perform two immediate rapid spin blood grouping tests when issuing group specific blood to a trauma patient
ii) issued A rhesus negative to an O rhesus positive patient without confirming the blood group.
iii) entered results for the rapid cross match test as negative on Winpath when you had not performed them.
b) on 18 January 2016, provided a signed written statement stating that you had issued blood after completing an immediate spin method, or words to that effect, when you were aware that this was not true.
3) The matters described in Paragraph 2 (a) (i) to (iii) placed the patient at risk of harm.
4) The matters described in Paragraphs 2 (a) (iii) and 2 (b) are dishonest.
5) The matters described in Paragraphs 1(a), 1 (b), 2(a)(iii), 2(b) and 4 constitute misconduct.
6) The matters described in Paragraphs 2(a)(i), 2(a)(ii) and 3 constitute misconduct and/or lack of competence.
7) By reasons of the matters described in Paragraphs 1 - 6 your fitness to practise is impaired
Allegation: (As finally amended)
Whilst registered as a Biomedical Scientist:
1. On 31 October 2016 at Nottingham Magistrates’ Court, you received a Conditional Discharge for:
a) On 16 April 2016 at [address], assaulted Victim by beating her. Contrary to Section 39 of the Criminal Justice Act 1988;
b) On 3 May 2016 at [address], assaulted Victim by beating her. Contrary to Section 39 of the Criminal Justice Act 1988.
2. During the course of your employment with Nottingham University NHS Trust:
a) On 14 January 2016, you:
i. Did not correctly interpret a rapid spin test result from the patient’s blood sample;
ii. Issued A rhesus negative to an O rhesus positive patient without confirming the blood group by performing an immediate spin test to cross match the blood group of the patient;
iii. Entered results for the immediate spin cross match test as negative on Winpath when you had not performed it.
b) On 18 January 2016, provided a signed written statement stating that you had issued blood after completing an immediate spin test or words to that effect, when you were aware that this was not true.
3. The matters described in Paragraph 2(a)(i) to (iii) placed the patient at risk of harm.
4. The matters described in Paragraphs 2(a)(iii), 2(b) are dishonest.
5. The matters described in Paragraphs 1(a), 1(b), 2(a)(iii), 2(b) and 4 constitute misconduct.
6. The matters described in Paragraphs 2(a)(i), 2(a)(ii) and 3 constitute misconduct and/or lack of competence.
7. By reasons of the matters described in Paragraphs 1-6 your fitness to practise is impaired.
1. On 16 January 2018, 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.
2. 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 absence of the Registrant
3. Ms Manning-Rees, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel received 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.
4. The Panel was informed by Ms Manning-Rees that the Registrant had been in correspondence with the HCPC on various occasions throughout these proceedings, and had been engaging with the HCPC. On 29 March 2018, the Registrant had sent an email to the HCPC case officer, thanking her for offering him the opportunity to make a statement to the tribunal. The email continued: ‘I know it is made with the intention of making the process as fair as possible, especially so after I made it plain that I wouldn’t be turning up in person’.
5. 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.
6. The allegation dates back to 2016. The Panel was aware that there were two witnesses who were to be called to give evidence, one of whom was in attendance, the other of whom was due to give evidence on day two.
7. The Panel concluded that the Registrant’s absence was voluntary, thereby waiving his right to attend. He had not instructed a legal representative to attend on his behalf, nor had he sought an adjournment. Further, given the Registrant’s email confirming his non-attendance, the Panel was of the view that there was no indication that he would attend a future hearing if the case were adjourned. 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.
Parts of the Hearing in Private
8. Ms Manning-Rees, on behalf the HCPC, gave notice to the Panel that there would be parts of the hearing which should be heard in private, given that they related to the Registrant’s private life, namely his health and his family. The Panel agreed that such matters should be heard in private, and invited Ms Manning-Rees to draw to the Panel’s attention those occasions when going into private would be appropriate.
Application to amend the Allegation
9. Ms Manning-Rees, on behalf of the HCPC, applied to amend the particulars of the allegation, as notified to the Registrant by letter, dated 2 November 2017. She submitted that the amendments were effectively to further particularise and clarify the allegation following receipt of the witness statements. She submitted that there would be no prejudice caused to the Registrant as he had been notified of the proposed amendments and had not raised any objection to them.
10. The Panel, having heard and accepted the advice of the Legal Assessor, determined to allow the application to amend in its entirety. It took into account that the proposed amendments had been notified to the Registrant in good time, and no objections had been received from him regarding them. It noted that the proposed amendments did not require any additional evidence from the HCPC, beyond that which had previously been served on the Registrant. The Panel was of the view that the proposed amendments could be made without injustice to the Registrant. They properly reflected and clarified the evidence anticipated to be received according to the witness statements and exhibits previously served on the Registrant, and, in the Panel’s view, did not change the nature of the matters alleged.
11. The Registrant is a Biomedical Scientist (BMS) registered with the HCPC. In 2016 he was employed as a Specialist BMS Band 6 in the Haematology and Blood Transfusion Department (the Department) at Nottingham University Hospitals NHS Trust (the Trust), having worked at the Trust for 8 years.
12. In this role, the Registrant’s main duties were to perform analysis, interpret and report blood test results, issue blood products and work in blood transfusion.
13. On 14 January 2016, the Registrant was working a shift from 3pm to 11 pm in the Department. EH, a BMS Band 5 within the Department, started work at 9pm and was due to work the night shift. At around 10pm the Department was notified by the ‘bleep’ system that a major haemorrhage had been activated in respect of a trauma patient in Accident and Emergency (A&E). The Department’s responsibilities in respect of the major haemorrhage included the analysing of a sample of the patient’s blood, in order to issue group specific blood to the patient. A protocol of standard operating procedures, entitled ‘Cross Matching, Selection and issue of Red Cell Components’ (the protocol) was in place to be followed by the Department. The Registrant carried out the testing of the patient’s blood sample.
14. The testing process envisaged by the protocol comprised a total of three tests. A rapid spin blood grouping test would be conducted on a patient’s blood sample to determine the patient’s ABO and Rhesus blood group in which three test tubes would be used. A second blood group test comprising a gel testing card would also be performed to determine the patient’s blood group. Both tests would be started at the same time, but the gel testing card would take 25 minutes for incubation and centrifugation, whereas the rapid spin test would take around 5 minutes for the contents of the three test tubes to react and develop. The rapid spin test was a more manual technique, and consequently had more room for human error. The third test would be an immediate spin test, which would take around 5 minutes, and would be conducted once the patient’s blood group had been determined from the test tube rapid spin test. This test involves mixing patients’ blood with donor blood to check compatibility for transfusion.
15. In the event of a major haemorrhage emergency incident, the protocol required the immediate spin test to be completed before issuing type specific blood to a patient. The gel testing card would not have produced results before the immediate spin test results would be ready, so conducting the immediate spin test would add a layer of accuracy before type specific blood would be issued and transfused into a patient. The immediate spin test was a safeguarding test to ensure type specific blood was only given for transfusion to a patient with that blood type.
16. It is alleged that the Registrant did not follow the protocol in respect of the testing and analysis of the patient’s blood sample. It is alleged that this led to not correctly interpreting the results of the initial rapid spin test, omitting to carry out an immediate spin test to check the initial blood results and, as a consequence, issuing incorrect units of blood to be used in a blood transfusion for the patient.
17. The error of issuing incorrect units of blood was discovered through the gel testing card, which had been set up at the same time as the initial rapid spin grouping test. This test revealed an error in the rapid spin blood group test result. Once the error was realised, the incorrect blood group units were recalled and returned from A&E to the Department without any detrimental effect to the patient, and correct units of blood were issued.
18. It is further alleged that, on 14 February 2016, the Registrant entered results into the Department’s electronic recording system, Winpath, of the immediate spin test when he had not performed it, and that he did so dishonestly.
19. On 18 January 2016, the Registrant signed a statement regarding the incident of 14 January 2016. It is alleged that this statement, was to the effect that the Registrant had issued blood after completing an immediate spin test, when he was aware that this was not true, and that he had done so dishonestly.
20. On 10 May 2016, the Registrant informed the Trust that on the previous day, he had been arrested and charged with common assault. On 31 October 2016, the Registrant was convicted after trial at Nottingham Magistrates Court of two offences of common assault, on 16 April 2016 and 3 May 2016. On 10 November 2016, the Registrant self referred the fact he had been convicted to the HCPC and said that he was awaiting sentence. On 22 November 2016, the Registrant was sentenced to a conditional discharge for 3 years and a restraining order was made.
Late application to amend particular 2(a)(i)
21. At the close of the HCPC case, Ms Manning-Rees applied to further amend particular 2(a)(i) to amend it from ‘did not correctly perform a rapid spin test on the patient’s blood sample’ to ‘did not correctly interpret a rapid spin test result from the patient’s blood sample’. She submitted that the evidence from Witness 1 was not that the Registrant had set up and performed the rapid spin grouping tests incorrectly, rather that he must have read the three test tubes the wrong way round, thus misinterpreting the results. Ms Manning-Rees submitted that the mischief of the particular was the Registrant’s error in not interpreting the results correctly. She conceded that the Registrant would not have had prior knowledge of the proposed application to amend, but there was nevertheless no prejudice to him as it would not materially change the nature of the allegation.
22. The Panel, having heard and accepted the advice of the Legal Assessor, determined to allow the application. It acknowledged that the Registrant would have had no notice of the allegation, but it observed that the nature of the proposed amendment was not inconsistent with the Registrant’s own responses in the investigatory interview when he was asked about the events of 14 January 2016, and in his 29 March 2018 email. In light of this the Panel did not consider any injustice would be caused to the Registrant by allowing the amendment.
Decision on Facts
23. On behalf of the HCPC, the Panel heard live evidence from Witness 1 and Witness2. At the time of the 14 January 2016 incident, Witness 1 was a Band 5 BMS at the Trust, working in the Department, and Witness 2 worked as a Human Resources (HR) Business Partner within the Trust’s Pathology Services, and had assisted in the investigation and collating information. The Panel was also provided with a documentary exhibits bundle, which included the Case Management Report of the investigation; correspondence between the Registrant and the Trust; notes of conversations between members of staff and the Registrant; summaries of investigative interviews, including those held with members of staff who were not being called as witnesses by the HCPC, as well as the summary of the investigative interview with the Registrant; and the Memorandum of Entry on the Nottinghamshire Magistrates’ Court Register and police summary.
24. The Panel heard and accepted the advice of the Legal Assessor. In respect of the disputed facts, the Panel understood that the burden of proving each individual fact is on the HCPC and that the HCPC will only be able to prove a particular fact if it satisfies the required standard of proof: namely the civil standard, whereby it is more likely than not that the alleged incident occurred.
25. The Panel considered the evidence of Witness 1. She was due to work the night shift at the Department on 14 January 2016. Her shift started at 9pm, and there was a two hour overlap between her shift starting and the Registrant’s shift ending at 11pm, during which the incident occurred. The Panel found her to be a credible witness, with no hostility towards the Registrant. She had been present in the Department when the incident happened, but readily said when she did not know the answer to questions, either through not having seen something, or not now remembering matters, given the passage of time.
26. The Panel found that Witness 2 was balanced in her responses, although her evidence was somewhat limited, as she had no direct knowledge of events or technical knowledge of blood transfusion processes, but had been part of the investigation and had collated information. She was able to assist the Panel in providing a timeline of events within that investigation.
27. The Registrant did not attend, but the Panel did not hold his non attendance against him. It had regard to his recorded responses in the investigation interview held on 6 April 2016, and the email sent in by him of 29 March 2016, which contained general admissions to the testing error which had occurred.
On 31 October 2016 at Nottingham Magistrates’ Court, you received a Conditional Discharge for:
a. On 16 April 2016 at [address], assaulted Victim by beating her. Contrary to Section 39 of the Criminal Justice Act 1988;
b. On 03 May 2016 at [address], assaulted Victim by beating her. Contrary to Section 39 of the Criminal Justice Act 1988.
28. The Panel finds particulars 1(a) and 1(b) proved.
29. The Panel had regard to the Memorandum of entry for the Nottingham Magistrates’ Court register for 22 November 2016. This recorded that the Registrant had been found guilty of the two offences of assault and that a three year conditional discharge had been imposed with a restraining order.
During the course of your employment with Nottingham University Trust;
a. on 14 January 2016 you:
i. did not correctly interpret a rapid spin test result from the patient’s blood sample;
30. The Panel finds particular 2(a)(i) proved.
31. The Panel had regard to the evidence of Witness 1. She said that at around 10:40pm, she went back into the blood transfusion section. Following receipt of the patient’s blood sample, the Registrant had set up the rapid spin grouping test and the manual blood grouping gel testing card, which was the correct action in such a situation. She said that the Registrant told her that he had issued 6 units of A rhesus negative blood to the patient based on the rapid spin blood grouping test. She said that she went back to the routine haematology section and returned to the blood transfusion section just before 11pm for a handover. The Registrant was taking the gel testing card out of the centrifuge and, shocked, said something like ‘how did that happen?’ The blood group type that had been detected on the gel testing card was O rhesus positive. She said that the Registrant must have read the three test tubes in the rapid spin incorrectly.
32. The Registrant, in the investigative interview, explained that ‘when you have [the three test tubes] in your hand you can have them the wrong way round which is what I did and that’s why the wrong blood was issued’. The Registrant in his email of 29 March 2018, admitted his error, stating: ‘I mis-grouped a trauma patient and issued blood products that could have caused a life threatening reaction’.
33. In light of all the evidence, the Panel was satisfied to the required standard that the Registrant had not correctly interpreted the results obtained from the rapid spin test.
ii issued A rhesus negative to an O rhesus positive patient without confirming the blood group by performing an immediate spin test to cross match the blood group of the patient;
34. The Panel finds particular 2(a)(ii) proved.
35. The Panel had regard to the evidence of Witness 1 and the admission of the Registrant set out in 2(a)(i) above, and was satisfied that he had issued A rhesus negative blood units based on his interpretation of the initial rapid spin test. The Panel was also satisfied that the later gel testing card later gave results to indicate that the patient’s blood type was O rhesus positive, and therefore inferred that the patient was an O rhesus positive patient.
36. The Panel had regard to the statements of Witness 3 and Witness 4, both dated 18 January 2018. Witness 3 was the Registrant’s Line Manager at the time, and she had recorded in her statement that on 15 January 2016, the Registrant, in answer to her question of whether he had performed the immediate spin crossmatch test, told her that he had not performed the test as he was concerned that A&E staff would be in the Department to collect the units before he could complete the test. Witness 4 was the Deputy Service Manager at the time and he had recorded in his statement that on 18 January 2016, at 13:05 when the Registrant informed him about the error, he asked what had happened to the immediate spin test and the Registrant had replied that he did not feel he had time to perform the immediate spin. Although there statements were hearsay, the Panel felt able to place weight on them, as they were supported by the Registrant’s admission in his investigative interview that when asked if he had done the second check he replied that he did not and that was the issue.
37. The Panel was therefore satisfied to the required standard that the Registrant had issued the blood units without confirming the blood type with the safeguarding immediate spin test.
iii entered results for the immediate spin cross match test as negative on Winpath when you had not performed it.
38. The Panel finds particular 2(a)(iii) proved.
39. The Panel was satisfied that the Registrant had not performed the immediate spin cross match test for the reasons set out in particular 2(a)(ii). The Panel had a copy of an incomplete audit trail of Winpath results, obtained in the course of the Trust’s investigation. The Panel had regard to the User ID column for the entries, which contained the Registrant’s initials for each entry onto the system. It was satisfied that the Registrant had made the entries and these included results entered at 22:48. Noted in handwriting on the document by AMA, was a comment that: ‘Immediate spin crossmatch results entered as negative’. The Panel was satisfied that it could rely on this hearsay statement as interpreting what had been entered. The statement of Witness 4 regarding the conversation between Witness 4 and the Registrant on 18 January 2016 recorded that Witness 4 had commented to the Registrant that the records on Winpath showed that the results had been entered as negative for the immediate spin, and that the Registrant had acknowledged this. The Panel also noted that in his email of 29 March 2018 the Registrant had not challenged the fact that he had entered the results onto Winpath as negative.
b. on 18 January 2016, provided a signed written statement stating that you had issued blood after completing an immediate spin test, or words to that effect, when you were aware that this was not true.
40. The Panel finds particular 2(b) not proved.
41. The Panel had a copy of the statement itself. It noted that the statement had been prepared in typeface similar to that typeface used in the statements of Witness 3 and Witness 4. There was handwritten annotation at the end saying: ‘The above statement is correct to the best of my knowledge.’ At the end there was, the Panel accepted, the Registrant’s signature. There was also a handwritten date of 18 January 2016. The Panel had no evidence before it as to how this statement had been prepared. Witness 1, who had been involved in the investigation said that when she and Witness 5, the Service Manager in Blood Science, had met with the Registrant on 18 January 2016 it would have been suggested to him that he should write his account, but she said that this statement and those of Witness 3 and Witness 4 had not been forwarded to her. The Panel also noted that the descriptions of the blood group and crossmatch tests were interchangeably referred to as ‘rapid’ and ‘spin’, which was confirmed by Witness 1.
42. The Panel was not able to be satisfied as to whether the statement had been prepared by the Registrant himself, or by someone else for him to sign. There was also no evidence as to who had handwritten the annotation to the effect that the contents were correct. The Panel noted that the Registrant had verbally told three different people that he had not performed the immediate spin test, including before the statement was signed by the Registrant. He had told Witness 3 on 15 January 2016 that he had not performed the test and he had told Witness 4 the same thing on 18 January 2016. He had also given an account to Witness 5 at a meeting on 18 January 2016, saying that he had not done the ‘rapid spin cross match’ and had owned up to this on the Friday (15 January 2016). This account was documented in a letter dated 26 January 2016 sent to the Registrant confirming the pending investigation and exclusion. The Panel had also been told by Witness 1 that the Registrant had said in that meeting that he was fearful for his job.
43. The Panel accepted that on an objective view, the statement of 18 January 2016 was incorrect in that it indicated that the immediate spin method had been performed. However, in the light of these other statements to the contrary, the Panel could not be satisfied to the required standard that the Registrant had signed the 18 January statement being aware that its contents were untrue.
The matters described in paragraphs 2(a)(i) to (iii) placed the patient at risk of harm.
44. The Panel finds particular 3 proved.
45. The Panel had regard to the evidence of Witness 1. She said that issuing the incorrect A rhesus negative blood to an O rhesus positive patient would have been a major blood incompatibility and could have been fatal to the patient if transfused. The Registrant himself admitted in his email of 29 March 2018 that he had issued blood products that ‘could have caused a life threatening reaction’.
46. Therefore, although there was no actual harm to the patient as the error was discovered and the blood recalled before use, the Panel was satisfied that the patient had been placed at risk of serious harm, as the incompatible blood had been issued and sent to A&E.
The matters described in paragraph 2(a)(iii) […] are dishonest.
47. The Panel finds particular 4 proved in respect of particular 2(a)(iii).
48. The Panel had regard to the Registrant’s entry of results on Winpath of a test which he had not performed. The Panel considered the Registrant’s state of mind at the time that he did this. The Panel inferred from all of the information that this had been a conscious decision on his part to input the information onto the system, with the intention to issue blood group specific units for the patient. The Panel concluded that this could not have been a mistake by the Registrant, as it had heard evidence from EH that an entry of results for an immediate spin test was required in order for the blood units to be issued. The entry was therefore required in order to progress the issue of the blood units.
49. The Panel acknowledged that the Registrant’s motivation was to issue the blood units promptly. He stated that he was aware that a nurse was waiting for them. The Registrant was relying on his ability to have conducted and interpreted the results of the initial rapid spin test correctly. However, the Panel was satisfied that the Registrant knew of the protocol requirements and had consciously decided not to adhere to it. The Panel considered that by the objective standards of ordinary and decent people, this would be considered as dishonest.
Decision on Grounds:
50. The Panel considered whether the facts found proved amounted to a lack of competence on the Registrant’s part in respect of particulars 2(a)(i), 2(a)(ii) and 3 and concluded that they did not.
51. The evidence before the Panel pointed to the conclusion that the Registrant was capable of carrying out the role of a BMS. He was at the level of a Band 6 and was regarded as a senior member of staff. The Panel was satisfied that he knew the processes and protocols to follow. The Panel also considered that the Registrant’s actions were in respect of a single blood analysis and testing and centred around his failure to conduct the immediate spin crossmatch test in accordance with the protocol. The Panel did not consider this to be a fair sample of the Registrant’s practice. In light of this, the Panel therefore concluded that the facts found proved did not amount to a lack of competence.
52. The Panel considered whether the facts found proved amounted to misconduct and concluded that, in respect of particulars 1(a), 1(b), 2(a)(ii), 2(a)(iii), 3 and 4 they did.
53. In respect of particular 1, the Panel was mindful that the Registrant had been found guilty of two offences of assault. The Panel was of the view that his actions fell far below the standards required of a registered professional, such that it was sufficiently serious to amount to misconduct.
54. In respect of particular 2(a)(i), the Panel considered that the Registrant had made an error in not correctly interpreting the results of the initial rapid spin test. It did not consider that this error in itself was sufficiently serious as to amount to misconduct. However, this initial error was compounded by the subsequent failures of the Registrant in not conducting the immediate spin crossmatch test as required by the protocol (particular 2(a)(ii)) and dishonestly entering results of a test not performed (particulars 2(a)(iii) and 4). The consequences of these failures were that the patient had been placed at risk of significant harm (particular 3) of potentially fatal incompatible blood type being administered to him through a blood transfusion.
55. The Panel was of the view that the Registrant’s failures had breached the following HCPC standards of conduct, performance and ethics:
Standards of Conduct
6: Manage Risk;
9: Be honest & trustworthy.
Standards of Proficiency
1: Be able to practise safely and effectively within their scope of practice;
2: Be able to practise within the legal and ethical boundaries of their profession;
3 : Be able to maintain fitness to practice;
4: Practice as an autonomous professional exercising their own professional judgement;
14: Be able to draw on appropriate knowledge and skills to inform practice – in particular 14.10, to be able to work in conformance standard operating procedures and conditions.
56. In the Panel’s judgement, aside from particular 2(a)(i), the Registrant’s failures were each serious in themselves, and cumulatively, such that they fell far below the standards of conduct and behaviour expected of a BMS. In the Panel’s judgement they were serious enough to amount to misconduct.
Decision on Impairment:
57. The Panel had regard to the HCPC Practice Note on Impairment and in particular the two elements of impairment, namely the ‘personal component’ and the ‘public component’.
58. The Panel first considered the ‘personal component’.
59. The Panel was of the view that the Registrant’s practice failures were capable of remediation. Although they included dishonesty, which is generally considered difficult to remediate, the Panel was of the view that the dishonesty stemmed from the Registrant’s failure to acknowledge the risk of not following the protocol. He did not perform the immediate spin crossmatch test and simply assumed that the initial test results were correct and would be sufficient.
60. However, the Registrant has not attended this hearing, nor has he provided any information in respect of any subsequent training he may have undertaken or of sufficiently developed insight. The Panel considered that although the Registrant had demonstrated some limited insight in his email of 29 March 2018, in that he understood the potential life threatening situation he had created, his email also indicated that he was deflecting some personal responsibility by suggesting that there were failings in the system that the Trust used. The Panel had no information that the Registrant had reflected on his personal failures, thought about what steps he would take to ensure that he did not repeat them, or thought about how such failures may impact upon the confidence of the public in the profession. In the absence of information from the Registrant as to his current position, there was no evidence that he has remedied his practice, in particular through training and reflection.
61. In all the circumstances, the Panel was of the view that there remained a risk of repetition of the Registrant’s failures, and therefore concluded that in respect of the personal component, his fitness to practise is currently impaired.
62. The Panel went on to consider the ‘public component’.
63. In light of the Panel’s conclusion that the Registrant’s practice failures, including a failure to adhere to the protocol in place, led to a sequence of events which could have led to a potentially fatal outcome for the patient, the Panel was of the view that the public would expect the Regulator to take action in order to protect members of the public, in particular patients, and to maintain confidence in the profession.
64. In relation to the two offences of assault which had led to a conditional discharge, the Panel noted that the Registrant had promptly informed the Trust of his arrest and charge, and had kept the Trust informed about the criminal proceedings as they had unfolded. He had also promptly self referred the matter to the HCPC. The Panel was of the view from the police summary that there had clearly been considerable mitigating factors relating to the assaults, which had led the Judge to impose the outcome that he did.
65. However, the offences of assault, taken together with the practice failings, did not, in the Panel’s view, portray the Registrant, a registered professional, in a good light. 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.
66. Accordingly, the Panel concluded that the Registrant’s fitness to practise is currently impaired in respect of the ‘public component’.
Decision on Sanction:
67. 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.
68. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. The Panel had regard to the 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.
69. The Panel first identified what it considered to be the principal mitigating and aggravating factors in this case.
70. Mitigating factors:
• The Registrant’s practice failures relate to a single incident;
• The Registrant’s failures are capable of remediation;
• The Registrant has no previous HCPC findings against him;
• The Registrant went and spoke to his line manager about the error and not performing the immediate crossmatch spin test the next day; and
• The Registrant’s personal mitigation.
71. Aggravating factors:
• The Registrant’s practice failures exposed the patient to the risk of significant harm;
• The Registrant ignoring a safety protocol and his lack of appreciation of the seriousness not following the protocol; and
• The Registrant’s limited insight.
72. The Panel considered the sanctions available, beginning with the least restrictive. The Panel did not consider that the options of taking no further action, mediation, or the sanction of a Caution Order to be appropriate or proportionate in the circumstances of this case. Neither option would provide the necessary levels of public protection, given the risk of repetition which the Panel has previously identified, nor would they reflect the seriousness of the case and the Registrant’s practice failures.
73. The Panel moved on to consider the imposition of a Conditions of Practice Order. The Indicative Sanctions Policy suggests that this sanction may be appropriate where the issues are capable of correction and there is no persistent or general failure which would prevent the Registrant from doing so. In this case, the Panel has already indicated that it is of the view that remediation of the Registrant’s failures is possible.
74. However, although the Panel was of the view that the failures were capable of being remedied, it had no evidence before it to satisfy it that they had, in fact, been remedied. As previously observed, the Panel did not have before it information about the Registrant’s current personal circumstances, and, as earlier found, it had no information of remediation or personal reflection. This meant that the Panel was not in a position to assess whether or not the Registrant would be willing or able to comply with conditions. The Panel therefore concluded that a Conditions of Practice Order is unworkable at this time.
75. The Panel next considered a Suspension Order and concluded that this was the appropriate and proportionate sanction, both to protect the public and to meet the wider public interest. Given the nature of the Registrant’s failures which included not following the safety protocol, and dishonestly entering results onto the electronic system, together with the risk of repetition which had been identified, the Panel was satisfied that such an Order would provide appropriate protection to patients. Such an Order is also required to maintain public confidence in the profession.
76. The Panel considers that the length of the Order should be for 12 months. This is with a view to the Registrant demonstrating to the next Panel that he has reflected on his failures and has developed sufficient insight into them. The Panel also considered that public confidence in the profession would be damaged if any lesser period were imposed.
77. The Panel acknowledged that the Policy lists dishonesty as the type of case in which a Striking Off Order may be appropriate. However, in the context of the dishonesty of this case, the Panel had regard to the fact that that the Registrant’s dishonesty was not for personal advantage, and that it was in the discrete context of his failure to follow the protocol in order to progress the issuing of blood units for a patient. The Registrant had told his Line Manager the next day that he had not followed the protocol, and had acknowledged to the Head of Service that he had entered the results, not having performed the test. In light of this and given that the Panel is of the view that the failings are remediable, the Panel is of the view that a Striking Off Order would be disproportionate at this time.
78. This Panel does not seek to fetter the discretion of a future reviewing Panel, but it considers that such a Panel may be assisted by the participation at any review, either in person or by telephone, by the Registrant, so that he may be able to demonstrate evidence of developing insight and remediation. Such evidence might also include:
• providing a genuine reflection on his failures, including the potential impact of them, the risk of circumnavigating safety protocols in respect of patient protection, how he would avoid a repetition in the future and how his failures may impact on public confidence in the profession; and
• providing testimonials;
79. Although the Panel had no information as to the Registrant’s current financial situation, it acknowledged that such an Order could have an impact upon him. However, the Panel determined that the interests of protecting the public and upholding confidence in the profession outweighs the interests of the Registrant.
Interim Order following Imposition of Sanction
Proceeding with the application in the Registrant’s absence
80. Ms Manning-Rees indicated that she wished to make an application for an Interim Order and submitted that it should proceed in the Registrant’s absence. She submitted that the Registrant had been given notice within the notice of hearing, dated 16 December 2018, that the HCPC may make such an application at the conclusion of the hearing, should a sanction of conditions of practice or above be imposed.
81. The Panel accepted the advice of the Legal Assessor and decided that it was appropriate to proceed in the Registrant’s absence. It was satisfied that the Registrant had been given notice in the notice of hearing, dated 16 December 2016, of the HCPC’s intention to apply for an Interim Order if conditions, suspension or strike off were imposed as a sanction.
82. The Panel considered that the same factors applied as for its decision to proceed in absence in respect of the substantive hearing, namely that the Registrant had voluntarily waived his right to attend and it was unlikely that an adjournment would secure his attendance.
Interim Order of Suspension
83. Ms Manning-Rees made an application for an Interim Order of Suspension for 18 months to cover the appeal period of 28 days before the Suspension Order comes into effect, or if the Registrant were to appeal, the period of the appeal.
84. The Panel heard and accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders, in that it must undertake a comprehensive review of the available information in order to conduct a risk assessment.
85. The Panel considered whether an Interim Order was necessary to protect the public and concluded one was necessary. The Panel has found current impaired fitness to practise on both the personal and public components. The Panel has found that in the absence of evidence of remediation or evidence of sufficient insight, it had concluded that there remains a risk of repetition. The Panel, therefore, concluded that an Interim Order was necessary to protect the public.
86. The Panel considered the wider public interest. The Panel concluded that, an Interim Order was also required to maintain public confidence in the profession and to uphold proper standards of conduct and behaviour.
87. Accordingly, the Panel concluded that an Interim Order is necessary to protect the public and is otherwise in the public interest.
88. The Panel considered an Interim Conditions of Practice Order, but for the same reasons as set out for the substantive hearing, considered that an Interim Conditions of Practice Order was not the appropriate response.
89. In all the circumstances the Panel determined to make an Interim Suspension Order for a period of 18 months. In deciding to impose this length, it took account of the fact that if the Registrant were to appeal, that process may take a considerable period of time.
The Registrar is directed to suspend the registration of Mr Eric C Simons for a period of 12 months from the date this order comes into effect.
History of Hearings for Mr Eric C Simons
|Date||Panel||Hearing type||Outcomes / Status|
|03/04/2019||Conduct and Competence Committee||Review Hearing||Hearing has not yet been held|
|03/04/2018||Conduct and Competence Committee||Final Hearing||Suspended|