Mr Michael D Hampton

Profession: Biomedical scientist

Registration Number: BS38310

Hearing Type: Review Hearing

Date and Time of hearing: 12:00 20/04/2018 End: 16:00 20/04/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

The following allegation was considered by a Panel of the Conduct and Competence Committee at the substantive hearing on 10-12 April 2017.


Whilst registered as a Biomedical Scientist and employed by Public Health England, you:


1. Used inappropriate and/or offensive language about and/or to your colleagues, in that you:


a. Referred to:

i. Colleague A as a ‘backstabbing ****wit’ or words to that effect;

ii. Colleague B as a ‘****’ and ‘****sucker’ or words to that effect;

iii. Colleague C as ‘[Colleague C] ****wit’ and/or ‘****wit’ or words to that effect;

iv. Colleague D as ‘lard a***’ or words to that effect;

v. Colleague E as ‘the monster from Zagreb’ the ‘mad Croat’ and ‘useless’ or words to that effect;

vi. Colleague F as ‘General [Colleague F]’ or words to that effect;

vii. Colleague G as being ‘idiotic’ and ‘stupid’ or words to that effect;

viii. Colleague H as ‘vinegar t***’ or words to that effect;

ix. Colleague I as ‘Big Ears’ and ‘[Colleague I] Skinflint’ or words to that effect;

x. Colleague J as ‘****ing b******’ or words to that effect;


b. During a one to one meeting told Colleague A to ‘shut up’.


2. Refused to comply with requests, in that you:

a. Did not provide access to approximately four molecular databases by 25 January 2013;

b. Asked Colleague H to select strains from the culture store when you had been asked not to do so;

c. Refused to tour the laboratory to see what changes had been implemented following your absence from work;

d. Did not attend work related meetings;


3. The matters described in paragraphs 1 and 2 amount to misconduct.


4. By reason of your misconduct your fitness to practise is impaired.

 

The Panel at the substantive hearing found the following:

Facts proved: 1 (a) (iii); 1 (a) (iv); 1 (a) (v); 1 a (vii); 2 (c); 2 (d)

Facts not proved: 1(a)(i); 1(a)(ii); 1(a) (vi); 1(a) (viii); 1(a)(ix); 1(a)(x); 1(b); 2(a); 2(b)

Grounds: Misconduct (1 a (vii) and 2 (d) only)

The panel found the Registrant’s fitness to practise impaired and a Suspension Order of 6 months was imposed as a sanction. This decision was reviewed on 10 October 2017 and that panel imposed a further Suspension Order of 6 months.

Finding

Preliminary Matters

Service

1. The Panel is aware from the papers that the review of the Registrant’s Suspension Order was due to be heard on an earlier date. Notification of the original review date (6 April 2018) was sent to the Registrant by letter dated 5 March 2018. The original hearing date was cancelled, and the Registrant was notified of this by letter sent to his registered address dated 4 April 2018. The Registrant sent an email to the HCPC on 16 April 2018 in which he stated he had not received any documentation from the HCPC by mail. This appeared to be in response to an HCPC email to him dated 26 March 2017 which referred to the original hearing date. Ms Senior informed the Panel that a bundle of papers for today’s hearing had been emailed to the Registrant. The Panel has seen an HCPC email response to the Registrant dated 17 April 2018. In that email, reference was made to earlier correspondence and the Registrant was told that if his registered address had changed, he should update the register with his new address. No such update has been received.

2. The Panel has seen an unredacted copy of a letter sent by the HCPC dated 6 April 2018 by first-class post to the Registrant at his registered address. A copy of this letter, which gave notice of today's hearing, was also sent to the Registrant by email on the same date.

3. The Panel has concluded that the HCPC has given proper notice of this review hearing in accordance with the relevant rules. In reaching its decision the Panel received and accepted legal advice. The Panel is satisfied that the HCPC sent the original notice to the Registrant's registered address, giving 28 days' notice of the original hearing date which was 6 April 2018. That date was cancelled and notice of cancellation was sent to the Registrant at his registered address by letter dated 4 April 2018. Two days later, notice of the new date for today’s hearing was sent in the prescribed manner to the Registrant’s registered address. Both letters gave notice of the date, time and place of the hearing. It is clear from his email of 16 April 2018 that the Registrant is aware of today’s hearing date and is seeking an adjournment.

Application for an adjournment

4. In his email dated 16 April 2018 to the HCPC, the Registrant requested that this review hearing be postponed on grounds that he is unwell and therefore unable to attend. In the email, the Registrant indicated that he was “not well enough to attend any meetings for dome (sic) 6 to 12 months”. The HCPC replied to this request by email dated 17 April 2018. In the email, the HCPC pointed out that the matter could not be postponed but that an application to adjourn could be made at the start of today’s hearing. It was suggested to the Registrant that he provide medical evidence in support of his application. It was also suggested that the Registrant could attend the hearing by telephone if he was to provide a contact telephone number. He was also informed that he could provide written submissions for the Panel.

5. The Registrant has not provided medical evidence or any telephone contact number, or written submissions. The Panel noted that when the Registrant had sought to postpone the substantive hearing, he had failed to provide any written reasons to support that application. It also noted that although he had not sought an adjournment of the first review hearing, the Registrant had emailed the HCPC shortly before the hearing to say that he could not attend due to a pre-arranged medical appointment. He did not provide any independent evidence to confirm that appointment.

6. The Panel has taken note of the HCPTS Practice Note on Postponement and Adjournment of Proceedings, and has also received and accepted legal advice. It has decided not to grant an adjournment in this case. The Panel has decided that there is a general need for expedition in the conduct of review proceedings. The Registrant has had the opportunity to provide independent medical evidence to support his application to adjourn but has not done so. In the Practice Note, it is clear that supporting medical evidence is required, if an adjournment is sought on medical grounds.

7. The Panel also took the view that it would be against the public interest to grant an adjournment. The consequences of adjourning for the period the Registrant appears to be requesting (6 – 12 months) would result in the current Order expiring on 10 May 2018 and the Registrant being able to return to unrestricted practice from that date. This is a mandatory review hearing which must be conducted before 10 May 2018. There is no suggestion that any adjournment would result in the Registrant’s attendance in person or via telephone, or that he would provide written submissions before that date. The Registrant has been given the opportunity to appear at the hearing via telephone but has not done so. Nor has he provided any written submissions.

Proceeding in the absence of the Registrant

8. The Panel heard submissions from Ms Senior for the HCPC as to the power to proceed in the absence of the Registrant. In reaching its decision, the Panel considered the HCPTS Practice Note on Proceeding in the Absence of the Registrant. It received and accepted legal advice.

9. The Panel has decided to proceed in the Registrant's absence. Whether or not the Registrant is receiving letters from the HCPC by post, it is clear he is receiving and responding to emails. In an email from the HCPC to the Registrant dated 27 March 2018, the HCPC referred to the upcoming review hearing (then due to be 6 April) and reminded him of what information the substantive hearing panel had considered might assist the reviewing Panel.

10. The Panel also noted that in the HCPC email to the Registrant dated 17 April 2018 (as well as in the letters giving notice of the hearing date), it was made clear that the Panel may proceed in his absence. The Registrant appears to be aware of this and has sought an adjournment, indicating that he is unable to attend for 6 to 12 months. In the email dated 17 April 2018, the Registrant was told that if the HCPC did not receive any information from him, it would assume that he was happy for the hearing to proceed in his absence. None of the information requested has been provided. Since the Suspension Order must be reviewed prior to its expiry on 10 May 2018, the length of the proposed adjournment would defeat the purpose of mandatory reviews such as this. As the Registrant has not provided any medical evidence to indicate the nature of his health condition or taken the opportunity to attend the hearing by telephone or to provide written submissions, the Panel has concluded that he has waived the right to be present and to be represented. The Panel noted that the Registrant did not attend either the substantive hearing or the first review hearing. The Panel is satisfied that in this case it is in the public interest that this mandatory review hearing should take place before the expiration of the current Order of Suspension which is on 10 May 2018.


Background

11. The Registrant was a Band 6 Biomedical Scientist (BMS) who commenced employment with Public Health England on 12 November 1990. The Registrant worked in the Gastrointestinal Bacteria Reference unit. His role was to carry out molecular epidemiological work.

12. Concerns were raised by colleagues of the Registrant as to his inappropriate and/or offensive language whilst at work and with regard to his refusal to comply with work related requests.

13. The Registrant did not attend the substantive hearing, which proceeded in his absence. He was found to have used inappropriate and/or offensive language about Colleague C ([Colleague C] ****wit or ****wit), Colleague D (lard a***), Colleague E (the monster from Zagreb, mad Croat, useless) and Colleague G (idiotic, stupid). It was also found that he had refused to tour the laboratory to see what changes had been made in his absence and that he did not attend work related meetings.

14. The panel at that hearing found that the use of inappropriate and/or offensive language towards colleagues was part of an objectionable work culture at the laboratory and that the Registrant had caused particular distress to Colleague G, which was tantamount to bullying. The use of such language amounted to misconduct in that case only. Whilst the Registrant’s refusal to tour the laboratory was not so serious as to amount to misconduct, the panel found that his refusal to attend work meetings for training purposes fell well short of what was to be expected of a BMS and it amounted to misconduct.

15. The panel found the Registrant’s fitness to practise to be impaired on personal component grounds as he had failed to show any insight or remorse into his misconduct and had not engaged with the regulatory process in any meaningful way. There was a high risk of repetition of the misconduct in the absence of any insight or remediation. The panel found that the Registrant had failed to maintain proper professional standards and that a finding of impairment was required to maintain confidence in the BMS profession and its regulatory body. The panel imposed a Suspension Order for 6 months which would give the Registrant the opportunity to demonstrate insight.

16. The Registrant was advised that a future review panel would be assisted by his engaging with the HCPC and by evidence of insight and remediation such as a reflective piece and testimonials from paid or unpaid work.

17. At the first review hearing, the panel noted that the Registrant had failed to take up the opportunity afforded him. He had not engaged with the HCPC and had not provided any information about his level of insight, employment or other circumstances.

18. The panel found that as there had been no change in circumstances since the substantive hearing, the Registrant’s fitness to practise remained impaired by reason of his misconduct on both the personal and public component grounds. In extending the Suspension Order for a further period of 6 months, the panel decided that it was appropriate and proportionate to give the Registrant a further opportunity to demonstrate that he had insight and to fully engage with his regulator.

19. The panel had given serious consideration to a Striking Off Order but considered that it was disproportionate at that time. It considered that the Registrant may have health issues which may have affected his ability to fully engage with these proceedings. The Registrant was warned that a time could come when a panel would conclude that the appropriate sanction was for his name to be removed from the register. The panel set out that a future review panel might be assisted by the Registrant attending the next hearing and providing evidence of insight and remediation in the following ways:

• A reflective piece which addresses the specific findings of misconduct, including an understanding of the distressing effect of offensive language and the effect of his failure to attend work related meetings;

• Testimonials from paid or unpaid work;

• Evidence of any efforts to maintain professional knowledge and skills, including evidence of continuing professional development (CPD);

• Evidence of the Registrant’s state of health (if relevant) from his medical practitioner.


Decision 

20. In reaching its decision, the Panel has taken account of the HCPTS Practice Note on Finding that Fitness to Practise is Impaired. It has had regard to the submissions made by Ms Senior for the HCPC. It has received and accepted legal advice. The Panel has taken account of all the information before it, including the determinations of the substantive hearing panel and the first reviewing panel. It has not received any of the information suggested to the Registrant by the previous panels as being of potential assistance to the Panel today.

21. The Panel noted that the purpose of a review hearing was to assess current fitness to practise and decided that in the absence of any up to date information about the Registrant's insight, reflection, CPD activity, or about his health, there had been no real change in circumstances since the last review hearing. As such, the Registrant remains a risk to colleagues and a risk to service users, and the Panel therefore decided that his fitness to practise remains impaired.

22. With regard to the wider public interest, the Panel is satisfied that confidence in the BMS profession could be undermined if no such finding were made today. A reasonable person aware of all the circumstances of this case would expect a finding of impairment to be made so that colleagues and service users were not put at risk and confidence in the BMS profession is maintained, and proper professional standards are upheld.

23. In these circumstances, the Panel has determined that the Registrant’s fitness to practise remains impaired.

24. The Panel then considered what the appropriate and proportionate sanction was in this case. It was referred to and took account of the HCPTS Indicative Sanctions Policy and received and accepted legal advice.

25. The Panel considered its powers under Article 30 (1) of the Health and Social Work Professions Order 2001 and the available sanctions in ascending order of seriousness. It had in mind that the purpose of a sanction was not to punish the Registrant but to protect the public. It decided the sanctions of no order, mediation and a Caution Order were inappropriate in this case where the misconduct found was serious and there was no evidence of insight, remorse, reflection and where there remained a risk of repetition.

26. The Panel also took the view that a Conditions of Practice Order was not appropriate in this case. Whilst the Panel considered that the misconduct was capable of being remedied, it was concerned that the Registrant did not appear to have taken any steps at all to remedy his shortcomings. The lack of evidence of any insight, remorse and reflection led the Panel to conclude there is a real risk of repetition in this case. The Panel has no information as to the Registrant’s current employment position. The lack of real engagement with the process leaves the Panel with no confidence that the Registrant would comply with any conditions imposed on him. The Panel takes the view that it is unable to formulate appropriate, workable and measurable conditions in this case.

27. The Panel next considered whether it was appropriate and proportionate to extend the current Suspension Order for a further period. It decided that it was not. The Panel considered that although the misconduct found in this case was not at the most serious end of the spectrum, in order for the Suspension Order to be further extended the Registrant should, by this stage, have started meaningful engagement with the process, shown that he had developed some insight and taken steps to remedy his misconduct so as to reduce the risk of repetition. There was no evidence that the Registrant had achieved any of this in the period during which he has been subject to a Suspension Order.

28. It was clear from paragraph 19 of the previous reviewing panel’s determination that it had given serious consideration to the sanction of striking-off but that it was considered to be disproportionate at that stage. Very clear guidance was given to the Registrant by that panel as to what he had to do to remedy his misconduct and to provide evidence of any steps he had taken to do this. The Panel takes the view that the proceedings have now reached the stage, where in the absence of proper engagement from the Registrant and evidence of steps taken towards remediation, these matters must now be brought to a conclusion.

29. The Panel has considered paragraph 41 of the Indicative Sanctions Policy which states:
“If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate”.

30. Whilst the Panel took the view that the misconduct in this case was capable of being remedied, it has decided that the evidence suggests that the Registrant is unable or unwilling to do so. It has been presented with no evidence of any reasons as to why he had not remedied his misconduct, or any reason to suggest that he is prevented from doing so.

31. In these circumstances, the Panel can see no useful purpose in imposing a further period of suspension where there is no evidence that in the future anything will change.

32. The Panel has therefore concluded that the only appropriate and proportionate sanction in this case is to order that the Registrant’s name is struck off the Register. In reaching this decision, the Panel took note of paragraph 48 of the Indicative Sanctions Policy which states:
“Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate”.

33. The Panel decided that even though the matters that led to the finding of misconduct in this case could have been remedied by the Registrant, his lack of insight and unwillingness to resolve these, leave it with no choice but to strike him off the Register. This sanction is also required to maintain public confidence in the BMS profession and in its regulatory process which would be undermined if, having given the Registrant every opportunity to engage with the process and demonstrate his fitness to practise, it continued to offer further opportunities which, in the Panel’s judgment, are likely to be ignored.

34. The Registrant, should he wish to work again as a BMS, can apply to the HCPC for consideration for re-entry on to the Register after a period of 5 years from the date that this Order takes effect.

35. The Panel therefore concluded that the proportionate and appropriate sanction in this case is a Striking Off Order.

Order

The Registrar is directed to strike the name of Mr Michael D Hampton from the Register on the date that this Order comes into effect.

Notes

The Order imposed today will apply from 10 May 2018.

Hearing History

History of Hearings for Mr Michael D Hampton

Date Panel Hearing type Outcomes / Status
20/04/2018 Conduct and Competence Committee Review Hearing Struck off
10/10/2017 Conduct and Competence Committee Review Hearing Suspended
10/04/2017 Conduct and Competence Committee Final Hearing Suspended