Mr Blessing Manyanga

Profession: Biomedical scientist

Registration Number: BS67179

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 08/01/2018 End: 17:00 09/01/2018

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

Panel: Conduct and Competence Committee
Outcome: Caution

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

 

Allegation

Allegation as amended:

Whilst registered as a Biomedical Scientist with the Health and Care Professions Council (HCPC) and during the course of your employment with Nottingham Hospital NHS Trust, you:

1.  Were convicted of Burglary on 03 March 2016 at Birmingham Crown court.

2. You did not inform your employers of the criminal proceedings which were being taken against you in a timely manner.

3. You informed your employer that you were required to attend Court as a witness to a case when you knew this not to be the case.

4. You did not inform the Health and Care Professions Council of the criminal proceedings which were being taken against you.

5. Your actions at paragraph 3 were dishonest.

6. The matters set out in paragraphs 2 - 5 constitute misconduct.

7. By reason of your conviction as set out at paragraph 1 and/or your misconduct as set out in paragraphs 2 - 5 your fitness to practise as a Biomedical Scientist is impaired.

Finding

Preliminary matters:

1. The Registrant, Mr Blessing Manyanga, has attended the hearing and given evidence before the Panel.

2. At the commencement of the hearing the Presenting Officer applied to amend two elements of the factual particulars advanced against the Registrant.  Notice of the proposed amendments had been given to the Registrant by a letter dated 1 June 2017.  The Registrant did not oppose the application to amend. In the view of the Panel the proposed changes did not extend beyond tidying up the terms of the factual particulars.  A further application to amend was made to include particular 5 in the allegation of misconduct and impairment of fitness of practice advanced by paragraphs 6 and 7.  Although the Registrant had not been given notice of this proposed amendment before the commencement of the hearing, he did not oppose it.  The Panel considered that this element of the application was required to correct an obvious typographical error.  The Panel was satisfied that the Registrant would not suffer prejudice as a result of the applications and acceded to them.  The allegations as amended are set out at the head of this document.

3. When invited to respond to the allegations, the Registrant admitted particulars 1 to 6 inclusive, but in relation to particular 7, stated that his fitness to practise is not impaired.

Background

4. On Thursday, 3 March 2016, the Registrant was convicted of the offence of burglary by a jury sitting at the Birmingham Crown Court.  On Monday, 6 March 2016, in that conviction he was sentenced to a Community Sentence to carry out unpaid work for 100 hours during the following 12 months.  In addition, various financial orders were made.

5. The incident that resulted in the conviction occurred on 14 March 2015.  The Registrant had been staying at a central Birmingham hotel with his girlfriend.  After having an argument with his girlfriend and under the influence of drink, the Registrant was reported to have entered a hotel room which was not that allocated to him and in which other hotel guests were staying.  The police were called and the criminal proceedings ensued.

6. The Registrant informed his employers of the fact that he had been convicted on the day he was sentenced, but particular 2 alleges that he did not inform his employers that he was the subject of criminal proceedings before that notification.

7. Particular 3.  It is the HCPC’s case that on two occasions in 2015, in order to be permitted time off work, the Registrant informed managers that he was required to attend court as a witness, whereas the true reason was that he needed the time off because of his own involvement in the criminal proceedings.  Particular 5 alleges that this behaviour was dishonest.

8. At 4:16pm on the day the Registrant was sentenced 7 March 2016 he sent an email to the Fitness to Practise department disclosing his conviction and sentence.  Particular 4 alleges the Registrant did not inform the HCPC before this notification of the fact that he was facing criminal proceedings and would be standing trial.

Decision on Facts

9. The HCPC called a single witness to give evidence before the Panel.  He was Mr AD, who at the material time was employed by Nottingham University Hospitals NHS Trust as a Deputy Service Manager.  It was to Mr AD that the Registrant made one of the two requests, purportedly to attend court as a witness in 2015.  It was also to Mr AD that the Registrant made a telephone call asking to speak to him after the sentence was imposed on him at the Crown Court, a telephone call that resulted in a meeting later the same day in which the Registrant disclosed the fact that he had been convicted.

10. In addition to the oral evidence of Mr AD, the HCPC relied upon the written witness statement of Mr BN, an HCPC Case Manager, whose evidence related to the obligation on a Registrant to disclose to the HCPC any involvement in criminal proceedings.

11. The Registrant gave evidence before the Panel.

12. The Panel found Mr AD to be a credible and honest witness. The Panel found the Registrant unguarded and candid in his evidence. He was consistent and credible.

13. In reaching its decisions, the Panel has had regard to the entirety of the evidence, and has done so in the light of the Registrant’s admissions to all of the factual particulars.

14. Particular 1.  The Panel is satisfied that the conviction has been proved.  It is demonstrated by the contemporaneous statements of the Registrant, by the Certificate of Conviction dated 22 March 2016 provided by the Court, and also by the Registrant’s admission.

15. Particular 2.  On the basis of the evidence of Mr AD and of that of the Registrant, the Panel is satisfied that the Registrant did not inform his employers of the fact criminal proceedings were taken against him before 7 March 2016.  However, because of the Panel’s view as to the significance of this omission with regard to the statutory ground of misconduct, it is appropriate that something should be said about the evidence relied upon by the HCPC as creating the obligation on the part of the Registrant to inform his employers.  The Panel accepts that the Trust’s Disciplinary Policy stated at Appendix 1.3.9 that, “employees arrested, cautioned, charge with or convicted of a criminal offence are required to report this to their manager at the earliest opportunity.”  However, the Panel accepts the Registrant’s evidence that at the relevant time he was unaware of this specific requirement.  When his employment was transferred over to the Trust he was not provided with a copy of the document, and in the view of the Panel it is significant that Mr AD, a senior manager was similarly unaware of the specific requirement and had to ask a member of the Trust’s HR department where it was to be found. 

16. Particular 3.  The Panel accepts that on two occasions in 2015, the Registrant requested time off work, stating that it was required for him to attend court as a witness.  One such request was made to Ms LH on 31 March 2015 for time off on 8 April 2015.  The other request was made to Mr AD on a date in 2015 that cannot now be identified.  The Panel is also satisfied that the purported reason for the time off was, to the knowledge of the Registrant, not correct because he required the time not as a witness, but because he was himself the subject of the criminal proceedings.

17. Particular 5.  This relates solely to Particular 3.  The Panel accepts the Registrant’s admission of dishonesty, finding that his actions would be considered to be dishonest by the standards of ordinary, decent people as his intention was to mislead his employer.

18. Particular 4.  The Panel is satisfied that the Registrant made no disclosure to the HCPC of the fact that criminal proceedings were taken against him before he sent the email at 4:16pm on 7 March.  However, as with the disclosure to his employers, the Panel should explain its findings on the obligation to make such disclosure because of its significance to the issue of misconduct.  By Standard 4 the Standards of conduct, performance and ethics in force at the time of the Registrant’s arrest and charge, the obligation was expressed in these terms:

“You must provide (to us and any other relevant regulators) any important information about your conduct and competence.”  The elaboration of that general requirement continued, “…. In particular, you must let us know straight away if you are: convicted of a criminal offence, receive a conditional discharge for an offence, or if you accept a police caution.”

It will thus be seen that these Standards of conduct, performance and ethics did not refer to the need for registrants to refer to the HCPC the fact that they had been charged with a criminal offence.
However, in early 2016 the Standards of conduct, performance and ethics was updated, and in that version the requirement was expressed in these terms in standard 9.5:

“You must tell us as soon as possible if: - you accept a caution from the police or have been charged with, or found guilty of, a criminal offence.”

The HCPC’s case has been advanced on the basis that the expectation was that the HCPC should have been informed of criminal proceedings even before the updating of the standards document, and that there was a clear imperative to do so after the publication of the updated version on 26 January 2016.

In respect of the period after January 2016, the Panel received no evidence as to how or when the updated standards were brought to the attention of registrants. Accordingly the Panel was therefore unable to determine at what point the Registrant should have been aware of the of the obligation to report the matter before a conviction. The Panel accepts the Registrant’s evidence that he did not believe that he was obliged to report the matter at any stage before he was convicted.

Decision on Grounds

19. So far as the allegation that the Registrant’s fitness to practise is impaired by reason of the conviction is concerned, the statutory ground is made out by the finding that he was in fact convicted as alleged.

20. So far as the allegation that the Registrant’s fitness to practise is impaired by reason of misconduct is concerned, the Panel has come to the conclusion that the facts advanced by particulars 2 and 4 are not sufficiently serious to be included in the finding of misconduct. So far as not informing the employer was concerned, the Panel would expect there to be a clear and identifiable requirement that had been communicated to the employee and that it had not been complied with.  The Panel was not provided with any evidence that such a requirement was communicated to the Registrant.

21. In relation to Particular 4 in circumstances where, until late January 2016, the HCPC did not specify that it was a requirement to inform it before conviction, the Panel has concluded that it is not appropriate to fall back on a general expectation that charging or other involvement in criminal processes would be referred.  As already stated, there has been no evidence put before the Panel as to whether the updated standards were communicated to the Registrant in the period of less than six weeks between the publication of the updated standards and the notification that the Registrant did make very promptly of the information he understood he was required to make.

22. However, so far as Particulars 3 and 5 are concerned, the Panel is satisfied that the dishonest telling of deliberate untruths is behaviour that must necessarily result in a finding of misconduct.

Decision on Impairment 

23. In making its decisions on current impairment of fitness to practise, the Panel considered the issue separately in relation to the conviction and the misconduct arising out of particulars 3 and 5. 

24. The Panel found the Registrant to be an intelligent and committed individual who wishes to be permitted to pursue a career as a Biomedical Scientist.  Since the conviction the Registrant has worked for a number of different organisations.  At each of them he has been permitted to work notwithstanding that he has been the subject of disclosure and barring checks.  The references he has obtained from the work he has undertaken since the conviction are impressive.  The references and testimonials are positive as to the Registrant being honest and a trustworthy character.  Without minimising the seriousness of the offence of burglary, having considered all the relevant information concerning the incident and the Registrant, the Panel has concluded that there is no appreciable risk that the Registrant will repeat behaviour that is likely to see him convicted of a serious criminal offence in the future.  In the view of the Panel the same is true of the dishonest untruths he told in 2015 in order to have time off work.  He was ashamed and deeply embarrassed the Panel accepted that he was genuinely remorseful and has developed full insight into this aspect of his conduct. In relation to his criminal conviction, he has since informed each of his employers about this as well as the HCPC allegations.  The Panel accepted the changes he has made to his lifestyle and his commitment to his profession. He has reduced his alcohol consumption, he is aware of the HCPC standards under which he is required to practice, has studied their implications and has applied them to his daily working practices. He has discharged all of his obligations in respect of his criminal conviction.  For these reasons, the Panel has concluded that, upon consideration of the personal component, the Registrant’s fitness to practise is not impaired.

25. However, when the Panel turned to consider the public component relevant to the issue of current impairment of fitness to practise, different considerations apply.  Both the conviction and the finding of dishonesty are serious findings against a professional person, and they remain serious notwithstanding the Panel’s finding that they are unlikely to be repeated.  In the judgement of the Panel a finding of current impairment of fitness to practise is required in order to declare and uphold proper professional standards, to send a signal to other registrants that behaviour of the sort indulged in by the Registrant will not be overlooked, as well as to reassure the public that matters of this sort are viewed as being serious by the profession’s regulator.  Accordingly, the Panel finds that with regard to both the conviction and the misconduct, with reference to the public component the Registrant’s fitness to practise is currently impaired.

26. The result of these findings is that both the conviction allegation and the misconduct allegation are well founded with the consequence that the Panel must proceed to consider the issue of sanction.

Decision on Sanction

27. After announcing the decision on the allegation, the Panel received submissions from the Presenting Officer and the Registrant on the issue of sanction.

28. On behalf of the HCPC the Presenting Officer reminded the Panel of the proper approach to the imposition of a sanction.  He also identified the available sanctions, drawing the attention of the Panel to elements of the HCPTS’s Indicative Sanctions Policy in relation to each.  The Presenting Officer did not urge the Panel to apply any particular sanction, but he did suggest that in view of the findings of the Panel in relation to current impairment of fitness to practise, any sanction imposed would be likely to focus on the public interest considerations identified by the Panel.

29. The Registrant addressed the Panel.  While acknowledging that the Panel had a duty to ensure that a proper sanction is imposed, he asked the Panel to consider making a sanction that would enable him to continue working as a Biomedical Scientist.  He submitted that if he is permitted to continue to work he is likely to be offered a full-time post in the department where he is currently working on an agency basis, and he would be able to complete his Masters degree programme, which requires HCPC registration.

30. The Panel has approached the issue of sanction on the basis that a sanction is not to be imposed to punish the registrant against whom findings have been made.  A sanction is only to be imposed to the extent that it is required to protect the public and to maintain a proper degree of confidence in the registered profession.  To ensure that these principles are applied, the first question a Panel must answer is whether the finding made requires the imposition of any sanction.  If the Panel decides that a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one that sufficiently addresses the issues of public protection and confidence is reached.  The full sanction range up to and including striking off is available in relation to both the conviction allegation and the misconduct allegation the Panel has determined to be well founded.

31. The Panel began its deliberations by identifying the aggravating and mitigating factors in the case.  The aggravating factors are that both the conviction and the misconduct involved dishonesty.  However, those two matters arose from a single incident because the untruths told to the managers arose from the shame and embarrassment felt by the Registrant over the behaviour that subsequently resulted in his conviction.  So far as the mitigating factors are concerned, the Panel identified the following:

• For the reasons just explained, matters found against the Registrant sprang from the same incident.

• He has demonstrated remorse, shown insight and has reflected on his behaviour.

• He presents a low risk or repeating the behaviour found against him.

• He has re-established himself in his profession since the incident, and has a real commitment to advancing his career.

• Having been sentenced to perform 100 hours of unpaid work and to pay financial orders, he got on with matters and undertook the work in four months when he could have taken a year to do it.  He also paid the costs orders quickly.

• He has engaged fully with the regulator to the extent that his conduct in these proceedings has been “admirable”.

32. The Panel is satisfied that this is a case in which it is necessary to impose a sanction.  A conviction for an offence of burglary and dishonestly telling untruths to an employer are, in the view of the Panel, not matters that can be overlooked by the taking of no further action.

33. When the Panel turned to consider the available sanctions, it started by deciding if a caution order would meet the circumstances of the case.  For the reasons already identified in the mitigating factors, particularly the insight gained by the Registrant, the low risk of repetition and the fact that unacceptable behaviour was not repeated over a period of time, the Panel concluded that a caution order would be appropriate.

34. When the Panel considered the appropriate length of the caution order it concluded that one year, and even two years would not reflect the gravity of the findings.  It did, however, find that it was not necessary to impose a caution order for a longer period than three years.

35. The Panel tested the appropriateness of a caution order for a period three years in two respects:

• By considering whether a more restrictive sanction would be appropriate.  In the judgement of the Panel the findings are not of a character that could sensibly be addressed by the making of a conditions of practice order.  The making of a suspension order would be disproportionately severe given the low risk of repetition, and the fact that there are no outstanding issues for the Registrant to address in relation to the shortcomings identified by the Panel’s findings.

• By considering whether the order would satisfy the wider public interest by reassuring the public that the Registrant’s behaviour was unacceptable and laying down a marker to other professionals that they cannot behave as the Registrant did. The conclusion of the Panel was that a fair minded and fully informed member of the public would consider a caution order for a period of three years to be a significant matter to be left hanging over the Registrant, and for that reason would be a necessary but sufficient sanction.

Order

The Registrar is directed to annotate the register entry of Mr Blessing Manyanga with a caution which is to remain on the register for a period of three years from the date this order comes into effect. 


Notes

Right of Appeal:

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Articles 30(10) and 38 of the Health and Social Work Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

Hearing History

History of Hearings for Mr Blessing Manyanga

Date Panel Hearing type Outcomes / Status
08/01/2018 Conduct and Competence Committee Final Hearing Caution