Mr Raoul Ebau
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The following allegation was considered and found proved by a Panel of the Conduct and Competence Committee at the substantive hearing on 30 January 2017 – 3 February 2017.
During the course of your employment as a Band 5 Biomedical Scientist with the Royal Bournemouth Hospital, you:
1. Inappropriately prepared samples for an Anti-nuclear Antibody run which resulted in around 17 samples having erroneous results.
2. On or around 13 April 2015, processed and/or filed a sample where the Patient Identifiable Description ("PID") did not match the submission form.
3. [Not proved].
4. On or around 9 April 2015, when using the Centrifuge:
a) did not weigh samples to ensure the centrifuge was properly balanced before turning it on;
b) said to the Medical Laboratory Assistant (MLA) that you had weighed the samples when you had not.
5. [Not proved].
6. Between 24 March and 18 April 2015, while booking in samples:
a) processed Calprotectins requested by GPs without authority;
b) booked in faecal samples as blood samples;
c) [Not proved].
7. On or around 10 April 2015, while on reception duties, did not include a sufficient patient identification description on the following samples:
8. [Not proved].
9. The action set out in Paragraph 4(b) was dishonest.
10. The matters set out in Paragraphs 1 - 9 constitute misconduct and / or a lack of competence.
11. By reason of your misconduct and / or lack of competence, your fitness to practise is impaired.
1. The Panel received evidence in the form of a notice date 30 November 2017 and a certificate of service which showed that notice of the proceedings had been sent by first class post to the address held by the HCPC as the Registrants address. The HCPC also became aware of an address the registrant provided in the United Kingdom at the time of his self-referral but he did not change his HCPC registered address at that time. There is also a notice of hearing sent to an address in Italy provided by his former employer. The HCPC sought to give him notice of the hearing at these additional addresses even though the Registrant has not changed his address on the HCPC Register. The notice of hearing invited the Registrant to participate in the hearing and explained the purpose of the hearing and the Panel’s powers.
2. The Panel had regard to Rule 3 of the Rules, which provides that the sending of a notice under the Rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a Registrant is entitled to 28 days’ notice of the hearing. The Panel was satisfied that due notice had been given of the proceedings in accordance with the Health and Care Professions Council (Conduct and Competence) (Procedure) Rules 2003.
Proceeding in absence of the Registrant
3. The Registrant was neither present nor represented.
4. Ms Kalay, on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.
5. She submitted first that the Panel was entitled to proceed in the absence of the Registrant because there was clear evidence that he had been served with notice of the proceedings in accordance with the Rules. She submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because the available information indicates that he has disengaged with the HCPC and this regulatory process since April 2016.
6. The Panel received the advice of the Legal Assessor, which it followed and is incorporated in its determination set out below.
7. Accordingly, the Panel considered whether, in all the circumstances, it should exercise its discretion to proceed in absence and had regard to Rule 11 which provides that:
"where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.”
8. Finally, the panel had regard to the guidance given to Panels by the Court of Appeal in GMC v Adeogba  EWCA Civ 162, that in deciding whether reasonable steps had been taken to serve a registrant when notice had been posted to his registered address, the panel should bear in mind that the registrant was under an obligation to maintain an up-to-date address on the regulator’s register.
9. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence. Ms Kalay reminded the Panel that the previous panel had been provided with a copy of a document from the Registrant dated April 2016 and date stamped by the HCPC as received in 13 April 2016, indicating that he no longer intended to engage with the HCPC. She told the Panel that the HCPC had received no other communication from him.
10. The Panel had regard to the guidance given in the HCPTS Practice Note, “Proceeding in the absence of the Registrant" dated March 2017 and to the House of Lords in R v Jones  UKHL 5. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care. It should look at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear. On this question the Panel gave considerable weight to the Registrant's indication that he did not wish to engage with the regulatory process.
11. It also considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance or that he would wish to be represented at any hearing.
12. The Panel accepted that a registrant will inevitably suffer prejudice by not being able to present his case. Nevertheless, the Panel balanced that against the public interest in allowing the HCPC to do its work protecting the public. The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: “It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.”
13. In all the circumstances the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant. All the evidence pointed to the Registrant having disengaged from the regulatory process and had voluntarily absented himself while there was a strong public interest in proceeding with the case so that it will be concluded within a reasonable time.
14. The Registrant was a Biomedical Scientist who qualified in Italy in 2004.
15. He worked in the United Kingdom as a medical laboratory assistant from August 2008 to August 2009 and from January 2011 until May 2014. Following an interview in November 2014, the Registrant began work on 16 January 2015 as a Band 5 Biomedical Scientist in the Department of Immunology and Pathology at the Royal Bournemouth Hospital. It was his first job in the United Kingdom as a Biomedical Scientist.
16. The Registrant worked at the Royal Bournemouth Hospital until April 2015. During that time his colleagues became increasingly concerned about the standard of the Registrant's work, predominantly basic tasks of booking, weighing, recording and processing samples for analysis. His work generated a significant number of Adverse Incident Reports (AIR) and an internal investigation was carried out in April 2015.
17. The panel at the substantive hearing which took place over a number of days found that it was a fundamental competence of a Biomedical Scientist to be able to perform laboratory tasks consistently and with attention to detail. This panel had regard to the Registrant's training record, which demonstrated that he had never been found competent in any of the basic skills required of him. He had demonstrated that he could do the necessary tasks correctly on occasions but was unable to do so consistently.
18. At the substantive hearing that panel heard evidence that the Registrant received adequate training from his colleagues of the sort which they had given to new members of the laboratory team in the past and to another colleague starting at around the same time as the Registrant.
19. The witnesses had expressed on a number of occasions their surprise and indeed bewilderment that someone as well-qualified as the Registrant appeared incapable of acquiring the basic skills needed to work in a laboratory.
20. That panel had regard to the Standards of Proficiency for Biomedical Scientists and found that the Registrant’s competence was lacking in the following areas:
• Standard 1 (be able to practise safely and effectively)
• Standard 4 (be able to practise as an autonomous professional)
• Standard 10 (be able to maintain records appropriately)
• Standard 11 (be able to reflect on review practise)
• Standard 14 (be able to draw on appropriate knowledge and skills to inform practise) and
• Standard 15 (understand the need to establish and maintain a safe practise environment).
21. That panel found that the Registrant’s conduct as found at Particulars 4(b) and 9 was dishonest. The panel had regard to the Standards of Conduct, Performance and Ethics of the HCPC.
22. Standard 13 provides that a Registrant must behave with honesty and integrity.
23. That panel was satisfied that the Registrant’s conduct as found under Particulars 4(b) and 9 breached Standard 13 and so amounted to misconduct.
24. The panel was satisfied that the Registrant's failings were wide-ranging and persistent. It was of particular concern that there was considerable evidence that he made the same mistakes repeatedly. Most of the Registrant’s recorded failures did not occur during the first few weeks of his employment but after he had been employed and trained for over two months.
25. The finding of dishonesty was also found to be also serious in the absence of any evidence that he has reflected upon it and understood that it must never be repeated. It is important that those dealing with a professional can trust that person to be honest.
26. Accordingly the panel was satisfied that the Registrant's fitness to practise was impaired by reason of lack of competence and misconduct. It went on then to consider and give its reasons for imposing a suspension order and indicated to the registrant that a reviewing panel may be assisted by current evidence that the Registrant is capable of or carrying out work as a Band 5 Biomedical Scientist safely. That may include testimonial evidence to this effect, evidence of his insight into his misconduct and steps he has taken to ensure there is no repetition.
27. The matter now falls for this Panel to review the issues as to whether the fitness to practise of the Registrant is currently impaired by reason of his lack of competence and misconduct, and if so, what if any sanction should follow.
Submissions and decision concerning fitness to practise:
28. On behalf of the HCPC it was submitted that the Registrant has not engaged with the HCPC or regulatory process since April 2016 when he said he was “resigning” from the HCPC. He has done nothing to address the rationale for the previous panel’s findings concerning lack of competence and misconduct. Neither has he engaged with the suggestions made by that panel to provide evidence which may demonstrate insight or remediation to reassure the Panel that any recurrence is highly unlikely.
29. It was Ms Kalay’s submission that the Registrant’s fitness to practise remains impaired.
30. The Panel also heard submissions from Ms Kalay on the issue of sanction. It was submitted that the need to protect patients and maintain public confidence in the profession that taking no action or imposing a caution order where there are competency issues extant would not protect patients from unwarranted risk of harm. The previous panel could not be satisfied the Registrant would comply with or engage with a conditions of practice order and she submitted that this remains the case today given the lack of engagement on the part of the Registrant and the absence of any evidence he has maintained his knowledge and skills.
31. As to a further order of suspension, it was Ms Kalay’s submission that a short period of suspension may yet provide an opportunity for the Registrant to re assess and re-engage with the regulator and regulatory process whilst the public and public interest would remain protected. However, her overall submission was that a strike off order was more appropriate given the lack of engagement since April 2016.
32. At this point the Panel did raise the issue concerning strike off before a period of two years continuous suspension in a lack of competency case. He invited comment as to the extent of the misconduct matters giving rise to the prospect of a striking off order being made today given the previous panel’s determination thereon. Ms Kalay acknowledged those findings in the previous panel’s decision and left the matter of sanction for the panel.
Decision on impairment of Fitness to Practise and Sanction
33. The Panel also considered the advice of the Legal Assessor and had regard to the HCPC’s Indicative Sanctions Policy (the ISP) and the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”.
34. In determining the issue of current impairment of fitness to practice the Panel has taken account of the submissions from the HCPC and the papers before it. It has taken due account of the HCPTS Guidance as to Fitness to Practise and has accepted the advice of the Legal Assessor.
35. In reaching its decision the Panel is aware that it must of its own judgement consider the matter comprehensively upon review. However, in doing so it has noted there has been no action on the part of the Registrant to engage with or revisit the previous panel’s findings, conclusions and recommendations as to providing information which would be of assistance to a reviewing panel. It is also well aware of the Registrant’s position as to withdrawing from further interaction with the regulator and the regulatory process in April 2016.
36. It follows that the concerns found proved as to the Registrant’s lack of competence and misconduct remain unchanged and unaddressed in terms of insight, education training or remediation. The Panel today cannot be satisfied that the risk of repetition is very unlikely and accordingly finds that the Registrant’s fitness to practise is currently impaired.
37. The Panel has considered its powers as to what if any sanction should follow to protect the interests of patients and the public interest in maintaining proper standards of conduct and behaviour in the profession.
38. The Panel is aware that the purpose of any sanction is not to be punitive but to protect the public. A sanction may be punitive in effect but it should not be imposed for that purpose. The Panel is aware it must consider the risk the Registrant may pose to service users in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest, which includes upholding the reputation of the profession and public confidence in the regulatory process.
39. The Panel due to the limited engagement on the part of the Registrant has little or no information as to his current personal or financial circumstances when addressing the issue of proportionality.
40. The Panel acknowledged the mitigating features as found by the previous panel. The Registrant’s failings arose during his first employment as a Biomedical Scientist in the UK. English was not the Registrant’s first language. His act of dishonesty was a single isolated incident which lasted less than a day, did not impact directly on the public and was not motivated by gain.
41. The Panel acknowledged the aggravating features as found by the previous panel. The Registrant’s lack of competence was serious and wide ranging. He demonstrated that he was unable to carry out work normally done at a lower grade by a Medical Laboratory Assistant. The Registrant has demonstrated consistently that he has no insight into the level of his failings. He has not learnt from errors or otherwise taken steps to improve his performance even when matters were raised with him at work and help was offered. He demonstrated a consistent lack of attention to detail. Throughout his dealings at work, with the investigation carried out by his former employers, and with the HCPC he has been defensive and unhelpful and has sought to blame others. His communication with his colleagues was poor. In addition, having been provided with an opportunity by the previous panel to remediate his failings, the Registrant has taken no action.
42. The Panel has considered the sanctions available to it in ascending order of severity. Throughout its considerations it has had regard to the principle of proportionality, balancing the protection of the public and the rights of the Registrant.
43. The Panel considered that to take no action or to impose a Caution Order would not be appropriate given the serious nature of the Registrant’s failings and the risk of repetition identified. The Panel has concluded that neither sanction would be sufficient to protect the public nor to address the wider public interest considerations.
44. The Panel has also considered a Conditions of Practice Order. The Panel has had regard to paragraph 30 of the ISP which provides:
“Conditions of Practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm.”
45. In light of the earlier finding, which remains unchanged in this Panel’s view, that the Registrant’s failings were wide ranging and that he poses a risk to service uses, the Panel is not satisfied that public safety would be adequately protected by a Conditions of Practice Order.
46. The Panel has also had regard to paragraph 33 of the ISP which provides that:
The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases:
• where there are serious or persistent overall failings;
• the registrant lacks insight or denies any wrongdoing; or
• involving dishonesty, breach of trust or the abuse of service users.
47. The Panel had regard to the communication from the Registrant to the HCPC marked received on 13 April 2016, in which he said that he did not wish to be part of a professional body which labelled its members as dishonest people and that he is “resigning from the HCPC”.
48. In these circumstances the Panel does not have any confidence that the Registrant would comply with any conditions and accordingly decided that it would be inappropriate to make a Conditions of Practice Order for that reason as well.
49. The Panel then considered a Suspension Order. The Panel could not impose a more restrictive sanction in respect of the Registrant’s lack of competence. It considered whether it should do so as a result of the finding of dishonesty.
50. The Panel considered the earlier panel’s finding that a Striking Off Order was not necessary or appropriate at that stage. It was noted it was a single incident of dishonesty that was not sustained. The Registrant repeated the dishonest statement to two people but retracted it within a relatively short time on the same day. Nor did it impact directly upon public confidence. It was not motivated by gain but rather an attempt to escape responsibility for failing to carry out his laboratory tasks.
51. The panel at the substantive hearing had regard to paragraph of 48 of ISP, which says: “Striking off should be used when there is no other way to protect the public”. It came to the conclusion that it could not make that finding on the basis of a single isolated incident of dishonesty without first giving the Registrant a further opportunity to engage with the HCPC. It concluded that a period of suspension would achieve this while protecting the public. Accordingly it made a Suspension Order.
52. Today reviewing Panel has considered the same and taken account of paragraphs 47 and 48 of the ISP:
47. Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.
48. 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.
53. In reaching its decision to impose a striking off order today, the Panel has considered the clear reference made by the previous panel as to the potential for a Striking Off Order if the Registrant did not reflect, engage and remediate. He has not done so, and whilst the dishonestly was an isolated incident, the Registrant despite being provided with the opportunity has not attempted to remediate it. Indeed, he appeared to entirely shy away from any consideration of it when indicating he didn’t wish to be part of a profession that could allege dishonestly on the part of a member of this profession. This as well as the continued lack of insight as shown to date are serious matters in this Panel’s judgement. They render a further period of suspension irrational as it would serve no purpose. The opportunity given to reflect and remediate has markedly not been taken and the Panel concludes for these reasons set against the above Guidance and passage of time that Striking Off is the necessary and proportionate response in this regard.
History of Hearings for Mr Raoul Ebau
|Date||Panel||Hearing type||Outcomes / Status|
|03/01/2018||Conduct and Competence Committee||Review Hearing||Struck off|