Miss Nisha Bhardwaj

Profession: Biomedical scientist

Registration Number: BS40019

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 19/07/2018 End: 16:00 19/07/2018

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015

1. In or around October 2011 you did not communicate with your line manager about the results of staining.

2. On or around 28 October 2011, it became apparent that you had not updated the ongoing document as required.

3. Between June 2010 and December 2010, you conducted flow cytometry experiments which were not accurate enough to be considered for research.

4. Between 2009 and 2011, your productivity of biopsy samples entered within the institute’s computer system only accounted for 5.6% of the total samples entered within the ION centre.

5. In or around May 2011, you amended figures within reports for the NCG service and/or collated the figures inaccurately.

6. In or around July 2011, you did not complete FACS analysis triplicate of cells in a timely manner.

7. In or around June 2011, you did not label the biopsy slides fully.

8. On more than one occasion you did not top up the liquid nitrogen for the biopsy samples in accordance with the liquid nitrogen rota.

9. In or around December 2011, you did not achieve consistent inter experiment results for patient cells.

10. Did not keep contemporaneous records of your work, in that you:

a. Did not record details of your working time on 28 October 2011. b. Did not record details of your working time on 3 November 2011.

c. Did not record work completed after a completion of tissue culture work started at 1.30pm on 11 November 2011.

d. Did not record details of your working time on 14 November 2011.

e. Did not record details of your working time after 3.15pm on 21 November 2011.

f. Did not record details of your working time after 3.15pm on 24 November 2011.

g. Did not record details of the experiments which you conducted on 25 November 2011.

11. The matters set out in paragraphs 1-10 constitute misconduct and/or lack of competence.

12. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

 

Finding

Preliminary matters

Potential Bias and Panel Composition

1. The Registrant indicated that she had asked that the Registrant Panel Member appointed to the final hearing to have experience of histology and wanted to check whether this had transpired, or she would make submissions about the constitution of the Panel.  The Registrant Panel Member indicated that he was a rare Biomedical Scientist having extensive experience of histology.  The Registrant asked about whether the Registrant Panel Member was familiar with frozen section work and muscle work.  The Registrant was reassured that the Registrant Panel Member was very familiar with frozen section work, although not specifically muscle work. No submissions were made about the composition of the Panel or any potential bias.

Paperwork

2. There is extensive paperwork in this case. The HCPC bundles are numbered, with the witness bundle having pages 1-53 and the exhibit bundle having pages 1- 217. There are numbered documents for the Registrant’s documents, paginated from 1-370. However, there were additional documents that were not numbered.  Each bundle was labelled, with HCPC and Registrant documents receiving separate labels.  The Registrant wanted other documentation that had been sent to HCPC to be placed before the Panel and arrangements for this to occur were made.

Statement

3. Mr Millin on behalf of the HCPC, brought to the Panel’s attention his concerns with a letter written by KC, Administrator, which appears at pages 20-21 of the Registrant’s Bundle 1. This letter concerns both character evidence and factual matters in relation to the Allegation.  It was explained that there were a number of options to resolve this situation, with the letter becoming a formal witness statement, or the letter being redacted.  Mr Millin indicated that were a witness statement to be produced, he would ask to cross examine this witness but would be prepared to do so on the telephone. The Registrant indicated that her preference would be to produce this letter as a statement.  The different options for Karen Cartwright’s evidence were canvassed by the Legal Assessor and the Registrant arranged for a signed statement to be produced to the HCPC, which was received the same day.

Potential Conflict of Interest

4. The Registrant wanted the Panel to be aware that two of the three witnesses who would be called by the HCPC were married to each other, and therefore there was what she described as a “potential conflict of interest”.  She indicated that their marriage provided a reason for them to support each other rather than her position.  The Registrant was content that both FM and ST give relevant evidence, on the basis that the former was her Head of Department, and the latter her line manager. However, she wanted the Panel to take their relationship into account, given that FM had no direct contact with her daily work and would receive his information from ST.  Mr Millin submitted that the nature of their relationship need not be relevant to the evidence was given.  The Legal Assessor gave advice which both parties accepted: that the relationship between witnesses as a motive for giving mutually supportive evidence, could be put by the Registrant to witnesses, and that ultimately this would be a matter for the Panel to consider in assessing what weight should be given to their evidence.

Attendance

5. The Registrant has put HCPC on notice that she may not attend in person tomorrow.  She has indicated that no disrespect is intended but that she does not want to be in the same building as the HCPC witnesses.  This is because as far as the Registrant is concerned, untruths will be told about her performance.  Different options for ensuring that the best available evidence was heard were canvassed.  The Registrant will consider her position tomorrow but wanted the hearing to proceed whatever decision she made.

Proceeding in private

6. The Legal Assessor gave evidence that while hearings are normally held in public, there were exceptional reasons why a hearing might be heard, in part or full, in private.  One of these reasons is the private life of the Registrant which includes the Registrant’s health.  The Panel was concerned that there are matters relevant to the Registrant’s health that would form part of the hearing.  The Panel indicated that they would go into private if there were matters affecting the Registrant.  The Registrant indicated that matters alluding to stress through performance-management at work over six years should be heard in public, but was content for other health related matters to remain private.

Evidence

7. The Registrant indicated that her Laboratory Notebook had had excerpts typed up, but that the Panel had not seen the original documents.  She indicated that she would be making available copies of the original notebooks, covering 2011, 2014-2015.  Mr Millin supported this course of conduct, given that Particular 10 of the Allegation references contemporaneous records, and photocopies would be the best evidence of this.
Amendment of the Allegation

8. The Panel asked Mr Millin whether there was any application to amend Particular 4 of the Allegation in relation to the figure of 5.6%.  Mr Millin indicated that there was no application at this stage but he would consider his position overnight.  No submission was made by the Registrant.
Statement of RP: possible Hearsay

9. The Registrant objected to the admissibility of the statement of RP.  She said that this statement was integral to the case but that he was not being called despite expressing a willingness to attend.  She submitted that it was unfair that his evidence would be untested, and if the statement was to be admitted, its weight should be reduced. Mr Millin on behalf of the HCPC responded that this was the first time that the Registrant had raised an objection to this statement being read. Accordingly, enquiries would be made as to the possibility of securing his attendance in person, or via telephone, to allow for his cross-examination.  Depending on the outcome of enquiries, alternative submissions could follow.

Background

10. The Registrant was appointed as a Band 7 Cellular Scientist in the Neurosciences Division from 15 June 2009.  The Registrant was supervised by LF in terms of her laboratory work and ST was the Registrant’s line manager for diagnostic muscle biopsy work. During the course of the Registrant’s employment, there were concerns raised about her work by different members of staff.

11. A performance management process was followed to monitor and track the Registrant’s performance between 2010 and 2015.  Two disciplinary proceedings were held. In 2015 the Registrant was dismissed in her post.
Hearing

12. The hearing commenced with the HCPC calling FM, ST, and LF as live witnesses.  The Registrant cross examined each of these witness.

The Statement of Dr Rahul Phadke

13. The Registrant applied for the statement of RP not to be read on the basis that his statement was not relevant to the core Particulars of the Allegation and that it would be unfair to admit it because it was prejudicial to her.  Mr Millin responded by handing up a letter dated 25 September and pointed out the last two paragraphs of the first page of this letter.  He submitted that the Registrant had been put on notice that the statement would be relied upon and had not objected.  He said that even if she was unrepresented these paragraphs were self-explanatory.  The Registrant countered that she had misunderstood what they meant. 

14. The Panel expressed concern at the lack of the Registrant’s legal representation and the Registrant agreed that she shared this concern.

Adjournment

15. The Registrant applied for an adjournment in order to seek legal advice and representation.  She had canvassed this during the lunch hour, at the recommendation of the Panel who were concerned at her lack of legal representation.  She had previously only been given the name of leading City firms of solicitors whose fees she could not afford; at the recommendation of Mr Millin, she had now sought assistance from an organisation that assists Registrants in Fitness to Practise hearings.  By using the search engine Google, she had found “FTP Organisational Support” and had now spoken to one of their representatives.

16. Mr Millin commended the HCPTS Practice Note on Postponement and Adjournment of Proceedings to the Panel.  He acknowledged that the lack of lack of legal advice and legal representation meant that there was the potential for injustice for the Registrant in this case.

17. The Panel accepted the advice of the Legal Assessor and the relevant Practice Note, applying the principles as set out in the case of CPS v Picton (2006) EWHC 1108.  The Panel decided to exercise their discretion and grant an adjournment as proceeding without the Registrant having legal advice or legal representation would be unfair.  The Panel considered the ability of the Registrant to fully present her defence and the benefit that legal representation would afford her.

18. The Panel make a direction that the Registrant is to provide an update no later than 24th November 2017, to the HCPC.

19. The case reconvened on 10th May 2018 when the Registrant was represented by Mr Summerfield of the organisation Pharmaceutical Defence. RP gave live evidence and was cross examined.
20. At the end of the HCPC case, a half-time submission was made.

Half Time Submission

21. A half time submission was made in relation to all the Particulars of the Allegation, notwithstanding that some admissions had already been made by the Registrant.

Submission on behalf of Registrant

22. Mr Summerfield’s argument on behalf of the Registrant is in essence about the weight that the Panel should ascribe to multiple witness statements and recollections of witnesses which refer to events some of which occurred as long ago as 2009.  He pointed out that the Registrant has worked in her chosen field for 24 years without previous or subsequent complaint, and the issues raised in this job, were particular to the role and the team in which the Registrant found herself. He said the Particulars of the Allegation did not represent a true reflection of her work, and the close knit team in which she found herself, included a husband and wife who gave evidence against her. He said that the Panel must ask themselves whether this partnership was likely to be anything other than mutually supportive, to the Registrant’s detriment. He indicated that in each Particular there were either inconsistencies between HCPC witnesses or varying degrees to which witnesses were vague.  He submitted that the resulting tenuous nature of the evidence provided in support of the Particulars of the Allegation, meant that no reasonably directed panel could find the Particulars proved to the requisite standard. 

Submission on behalf of HCPC

23. Mr Millin responded to Mr Summerfield’s submission by reminding the Panel that the evidence included some primary sources and documents which had been contemporaneous to events alleged.  Further, he reminded the Panel that the Registrant had made admissions to five of the Particulars which must indicate some comprehension of what was alleged.  He said that if the Registrant was to give evidence and provide explanations for these admissions that this could prove persuasive to the Panel but this was for a later stage.  The evidence presented by the HCPC was sufficient to allow a reasonably directed panel to find the Particulars provided to the requisite standard.

24. The Panel accepted the advice of the Legal Assessor.  She commended the HCPTS Practice Note on Half Time Submissions to it, and took them through the cases of R v Galbraith (1981) 73 Cr App R 124, [1981] and R v Shippey (1988) Crim LR 767). She reminded them of the need to consider the Particulars of the Allegation in turn and distinguished the position at the point of a half time submission, from a decision that could be made at the conclusion of the stage relating to facts.

25. The Panel considered the submissions of both parties, the evidence from other witnesses and the documents referred to in turn, in relation to each Particular of the Allegation.

Particular 1: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, in or around October 2011, you did not communicate with your line manager about the results of staining.

26. The Panel noted that there was evidence from LF that the Registrant had given the results of the staining to the Consultant directly. However, LF’s oral evidence in the hearing was that if there was a problem with the staining then the Registrant was expected to have communicated those results to her as she was her line manager. The Panel considered that this evidence by LF meant that there was a case to answer.

Particular 2: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, in or around October 2011, it became apparent that you had not updated the ongoing document as required.

27. LF’s evidence was that in weekly meetings it had become apparent that the Registrant had not updated the on-going document. She said that the on-going document was, “a Word document to help plan and organise work for the service [and]… for communication amongst team members.”  Her evidence was that it was the Registrant’s responsibility to update the on-going document following the multi-disciplinary team meeting, and at a meeting on 28 October 2011, it was discovered that the document was not updated. The Panel is satisfied the evidence provided by LF means that there is a case to answer here.

Particular 3: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, between June 2010 and December 2010, you conducted flow cytometry experiments which were not accurate enough to be considered for research.

28. In her witness statement, ST set out that the Registrant produced flow cytometry test results that could not be relied upon due to their inconsistency after working on this independently from June to December 2010. Accuracy involves getting the correct result and inconsistent results suggest inaccuracy. This evidence is sufficient for there to be a case to answer, notwithstanding the argument by Mr Summerfield that research is simply about testing a hypothesis and both methods and results of procedures will not immediately be perfected.

Particular 4: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, between 2009 and 2011, your productivity of biopsy samples entered with the institute’s computer system only accounted for 5.6% of the total samples entered within the ION centre.

29. The Panel accepted that in LF and FM’s oral evidence they could not explain precisely how the figure of 5.6% had been arrived at.  However, FM was able to explain how the figures could have been arrived at and suggested that the sum of the different figures could equal 5.6%.  FM was clear that the Registrant had been less productive in terms of entries onto the Institute’s computer system than other people. Accordingly, the Panel found that there was a case to answer.

Particular 5: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, in or around May 2011, you amended figures within reports for the National Commissioning Group (“NCG”) service and/or collated the figures inaccurately.

30. LF’s evidence was that the Registrant had amended the figures which had previously been submitted to NCG. LF said that there was a change of 30% in the figures that had been submitted to NCG.  While Mr Summerfield submitted that some of the references to amendments were couched in vague terms, LF was clear that there had been amendments to the figures and accepted that this may have been because an error was being corrected, or because figures were collated inaccurately. This Particular has not been drafted on the basis that a rationale has been provided for the Registrant changing figures but rather that there was a discrepancy with the figures.  LF gave oral evidence that the Registrant was responsible for keeping these figures. The Panel was satisfied that the evidence of LF meant that there was a case to answer.

Particular 6: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, that in or around July 2011, you did not complete FACS analysis triplicate of cells in a timely manner.

31. The Panel took into account Mr Summerfield’s submission that “timely” is a subjective term and that this Particular is not drafted with precision.  However, the Panel noted ST’s evidence was that the Registrant had 4 weeks to complete the task but had not done so. ST accepted that it may have been the case that the Registrant was “only able to do it twice as she did not have enough cells to do it a third time,” but this Particular is not drafted to reflect a rationale for the failure to complete FACS analysis in triplicate of cells in a timely manner.  The evidence of ST intimates that 4 weeks would have been an adequate timeframe for the task to be completed with adequate planning, if someone was competent at growing cells.  Given this evidence, the Panel is satisfied that there is a case to answer.

Particular 7: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, in or around June 2011 you did not label the biopsy slides fully.

32. The Panel took account of the evidence of RP, who explained that the full labelling of slides involved more than a single identifier, such as name or date of birth because more than one patient might have the same name or date of birth.  He said it was important for biopsy slides to be fully labelled so as be clear about which patient population they belonged to for research, as well as being able to go back to the correct individual patient’s clinician if required. LF’s evidence was that biopsy slides “were not fully labelled.”  The Panel therefore is satisfied that there is a case to answer for this Particular.

Particular 8: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, that on more than one occasion, you did not top up the liquid nitrogen for the biopsy samples in accordance with the liquid nitrogen rota.

33. LF gave evidence that this happened more than once and while she could not remember the dates on which this occurred, nonetheless did recall more than one instance when someone else had to do this instead of the Registrant. While the Registrant in cross examining LF, provided explanations for why this could have been the case, and processes that operated to mean that other people completed the task, the Panel noted that this Particular is not drafted to take account of how reasonable the actions or omissions were, only that they occurred.  Accordingly, the Panel accepted the evidence of LF as sufficient to mean that there is a case to answer for this Particular.

Particular 9: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, in or around December 2011 you did not achieve consistent inter experiment results for patient cells.

34. ST’s evidence was that inter-experiments in when you repeat the same experiment more than once and compare the results. Her evidence was that the Registrant’s result were “completely inconsistent”.  The Panel finds that there is a case to answer for this Particular.

Particular 10: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015, you did not keep contemporaneous records of your work.

35. The Panel heard from RP that while a Laboratory Book is not normally kept by Biomedical Scientists in every laboratory, that this was usual practice within his laboratory and that he had not seen such a book kept by the Registrant.  ST’s evidence was that the Registrant was asked to keep a record of the time she spent in The Institute of Child Health (“ICH”) to improve her productivity. This was subsequently referred to by ST as the Registrant recording time in her ‘lab books’, some of which Dr Torrelli signed. ST’s evidence was that the Registrant was asked to record information such as her time of arrival, her experiment start and end time and the time she left work. When ST examined the lab books she found the following omissions relating to Sub-Particulars (a)–(g).

a) That you did not record details of your working time on 28 October 2011.

36. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the relevant hours regarding this date.  There are records of other working time detailed and therefore this appears to be evidence of an omission. Accordingly the Panel finds that there is a case to answer.

b) That you did not record details of your working time on 3 November 2011. 

37. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the relevant hours regarding this date.  There are records of other working time detailed and therefore this appears to be evidence of an omission. Accordingly the Panel finds that there is a case to answer.

c) That you did not record work completed after a completion of tissue culture work started at 1.30pm pm on 11 November 2011. 

38. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the work completed after a completion of tissue culture work started at 1.30pm pm on 11 November 2011. There are records of other tissue completion work detailed and therefore this appears to be evidence of an omission.  Accordingly the Panel finds that there is a case to answer.

d) That you did not record details of your working time on 14 November 2011. 

39. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the relevant hours regarding this date.  There are records of other working time detailed and therefore this appears to be evidence of an omission.  Accordingly the Panel finds that there is a case to answer.

e) That you did not record details of your working time after 3.15pm on 21 November 2011. 

40. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the relevant hours regarding this date.  There are records of other working time detailed and therefore this appears to be evidence of an omission.  Accordingly the Panel finds that there is a case to answer.

f) That you did not record details of your working time after 3.15pm on 24 November 2011. 

41. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the relevant hours regarding this date.  There are records of other working time detailed and therefore this appears to be evidence of an omission.  Accordingly the Panel finds that there is a case to answer.

g) That you did not record details of the experiment which you conducted on 25 November 2011.

42. There was no evidence put before the Panel that there were any records of the Registrant having made a note of the details of the experiment that she conducted on 25th November 2011.  There are records of other experiments that the Registrant conducted and therefore this appears to be evidence of an omission.  Accordingly the Panel finds that there is a case to answer.

43. Given the Registrant made admissions to Particulars 3, 5, 7, 8 and 10 at the outset of the hearing, Mr Millin submitted that the Panel should place significant weight on these admissions in considering the half time submissions. The Panel has not placed significant weight on these admissions in finding that there is a case to answer. This is notwithstanding that admissions can be the best available evidence. This is because the Registrant was not legally represented at the time. 

44. The Panel accepted the advice of the Legal Assessor that the relevant test is whether the Panel is satisfied that on the basis of the HCPC evidence taken at its highest, that no Panel, if properly directed, could find the matter proved.  If the Panel is satisfied that such is the case, then they have the power to find that there is no case to answer.  The Panel accordingly considered the evidence before them, the nature of the evidence, and the submissions made, when examining the Particulars in turn. 

45. The Panel did note some contradictions, and that the memories of all the witnesses are not clear so many years after events are alleged. ST indicated that she could not remember specific dates nor specific experiments given the passage of time.  The Particulars detail allegations involving 2010 and 2011, meaning that in some circumstances almost 8 years have elapsed since events are alleged to have occurred.  However, the Panel accepts that given the test it needs to apply at this stage there is sufficient evidence to find a case to answer.

46. The Panel has decided that it has been provided with some evidence of each Particular of the Allegation.  This is the case even though the evidence regarding some Particulars involves the proving of a negative: e.g. the failure of the Registrant to share information that should have been available to her managers. At this stage, the Panel is not required to decide if the facts are proved, but only if they are capable of being proved if the evidence, as presented to date is taken at its highest. 

47. The Panel is satisfied that there is evidence that supports each Particular of the Allegation. The Panel is aware of the passage of time that has elapsed since 2009 and that some of the evidence may lack precision on account of this.  Notwithstanding this, the Panel did not find that the evidence to be of such a tenuous character, either because of inherent weakness or vagueness or because it is inconsistent with other evidence that a case to answer does not exist.

48. While ultimately the HCPC evidence is such that its strength or weakness will depends on the view to be taken of a witness's reliability in light of any evidence with which the Registrant can counteract it, at this stage, there is evidence that supports the facts of the case. There is no reason for the case to be halted at this stage, for any of the Particulars of the Allegation. Each has been considered individually in turn.

49. In accordance with the HCPTS Practice Note on “Half Time Submissions” the Panel finds that the evidence to date supports the facts alleged, which if proved could amount to a statutory ground and impairment. While the Panel will keep an open mind until the Registrant’s case is heard and further submissions are made, and advice received, it does at this stage consider that there remains a case to answer insofar as all the Particulars alleged are concerned.

Decision on Facts

50. The Panel has taken account of all the material before it, including the oral evidence of witnesses called on behalf of both parties, documentation from them and their submissions. The Panel has had sight of the documentation that both the HCPC and the Registrant have provided and accepted the advice provided by the Legal Assessor, which included that the burden on proving the facts falls on the HCPC and the burden of proof is the balance of probabilities.

51. Live evidence was heard from the following HCPC witnesses and the Panel assessed the demeanour and evidence of each witness:

• Dr LF, Clinical Scientist, Paediatric Muscle Pathology Service at the Institute of Neurology (ION) and the Registrant’s line manager at ION. The Panel found her credible and open. While her memory was affected on occasion by the passage of time, she made it clear when this was the case. Her obvious frustration with the process was apparent on occasion.

• Dr ST, Research Associate on Developmental Neuro Science Programme at ICH and the Registrant’s Research and Development supervisor at ICH.   The Panel found her credible, consistent, fair and honest.  Both she and the Registrant said they had a good relationship.

• Professor FM, the lead of the National Diagnostic Service at Dubowitz Neuromuscular Centre (DNC): The Panel was particularly impressed with FM. He was calm, measured and balanced. He readily accepted when he could not remember.

• Dr RP, a Consultant Neuropathologist at the DNC, was crisp in his response and had a good recollection bearing in mind the passage of time. The Panel found him reliable and measured.

52. Live evidence was heard from the following witnesses on behalf of the Registrant and the Panel assessed the demeanour and evidence of each witness:

• Professor JH, a professor in Neuro Pathology at ION, was impressive, focused and credible. She was limited in her evidence as she worked with the Registrant in muscle biopsies prior to the Allegation.

• Professor FS, former Head of Department at ION was credible and positive about the Registrant but could not speak of the Registrant’s skills as he had not worked with the Registrant since 2004.

• KC, Team Administrator at DNC: was credible and straightforward and happy to be corrected on occasion. She had only worked with the Registrant for a year and could not comment on the Registrant’s scientific abilities. However, she did corroborate some of the Registrant’s points about difficult working relationships at that time.

• Registrant.  Even taking into account the usual stresses of professional tribunal proceedings, the Registrant struggled to collect her thoughts in a logical or consistent manner. She appeared focused on her own concerns rather than addressing tribunal matters, perhaps not surprising given the length of time these proceedings have taken.


Particular 1: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
In or around October 2011, you did not communicate with your line manager about the results of staining.

53. The Panel heard from LF who was one of the Registrant’s line managers in October 2011. Her evidence was that if there were problems with staining of cells on slides the Registrant should have communicated this directly to her, rather than simply send on results to the Consultant.

54. LF’s evidence was the Registrant knew when there were problems with staining “Everyone, especially like Nisha’s level biomedical scientist…. they know the quality of results.” LF also said that, “I told Nisha that if the results were of questionable quality then she should show them to me before they went to the consultant.”

55. FM in a letter to the Registrant dated 18 October 2011 referenced the Registrant’s progress from 21 July 2011 up until their meeting on 6 October 2011.  He wrote, “results of staining were not communicated to LF.” It is not clear if this was from his own knowledge or what he had been told. However, the Registrant’s case, as evidenced by emails is that periods of leave by LF and the Registrant combined to mean that there was a long period when no direct communication between the two took place. The Registrant did not recall any staining procedures where there had been problems in October 2011, and when pressed neither did LF. LF’s evidence was that not communicating problems with slides happened throughout the time they worked together. The Registrant’s further evidence at these proceedings was that she left the slides for LF to see if there were problems. However, she did not specify the times she did this.

56. The Panel noted that the specific Particular relates to ‘in or around October’ and FM’s letter relates to ‘21 July to 6 October 2011’. LF said that problems with the lack of communication were throughout the Registrant’s period of employment, which would have included October 2011. The Panel was satisfied that on the balance of probabilities this is specific enough to cover the date in the Particular.  The Panel was satisfied that the Registrant did not communicate with LF about the results of staining in October 2011. Accordingly this Particular is found proved.

Particular 2: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
in or around 28 October 2011, it became apparent that you had not updated the ongoing document as required.

57. The Panel took account of the “Rota for MDT preparation” document which showed the Registrant was on the rota for the week commencing 24 October 2011. In FM’s letter to the Registrant dated 5 December 2011 he refers to the Registrant’s failure to update the database. When the Registrant was “asked on 28 October 2011 at the ongoing meeting you replied in the affirmative and said the updates were in place. It has taken several days and 2 reminders from RP for this to be actioned.” 

58. Both LF and FM indicated that the Registrant did not update the ongoing document.   The Registrant indicated in an email dated 28 October 2011 to RP that “we update” the ongoing document.  Her further evidence in these proceedings was that there were not precise instructions regarding being asked to update it. Her evidence was that this was an informal document and that it did not need to be updated immediately an event occurred but that it was updated weekly, sometimes only after the Multi-Disciplinary Team (“MDT”) meeting occurred.

59. LF’s evidence was that it was the Registrant’s responsibility in relation to the ongoing document as it was one of her duties associated with MDT meetings. She was expected to correctly fill in and appropriately edit it.

60. LF’s evidence was that at a meeting on 28 October 2011 the ongoing document was discussed at the MDT and it became clear that the ongoing document had not been updated by the Registrant.  LF said the Registrant knew her responsibility, it came from her training, day to day communication and explanation at the team meetings.

61. The Registrant’s evidence was that there was no Standard Operating Procedure (“SOP”) about when the ongoing document needed to be updated, and that she was often locked out of the document as other people were using it. These were offered as reasons why she had not updated the document in a more timely fashion.

62. The Panel found that on the Registrant’s admission she was required to update the ongoing document, and that from the 28 October 2011 meeting it was clear that she had not done so. Accordingly this Particular is found proved

Particular 3: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
Between June 2010 and December 2010, you conducted flow cytometry experiments which were not accurate enough to be considered for research.

63. Both ST and the Registrant gave evidence about inconsistent results being obtained in her completion of experiments.  In terms of the experiments not being accurate enough for these to be considered relevant to research, the explanations of the Registrant and ST differ. 

64. ST’s evidence was that from June to December 2010 the Registrant was working independently, having been trained in the technique and taught by a colleague who set up the technique.  The Registrant booked the flow cytometry machine during this period for at least 40 experiments, although ST believed it could have been as many as 68 experiments.  The results were so inconsistent that they could not be used for research.  The Panel has previously determined that inconsistent results meant they were not accurate.  ST said one of the reasons the results were inconsistent was that the Registrant did not follow the SOP and the Registrant kept changing the conditions in which the cells were growing.

65. The Registrant’s evidence was that she was not experienced in flow cytometry, there was insufficient training and she tried to tell staff it was not working. 

66. The Panel accepted that on both accounts that the Registrant’s experiments were not accurate enough. Accordingly, this Particular is found proved.

Particular 4: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
Between 2009 and 2011, your productivity of biopsy samples entered with the institute’s computer system only accounted for 5.6% of the total samples entered within the ION centre.

67. The Panel noted that neither LF nor FM in their oral evidence could explain precisely how the figure of 5.6% had been arrived at.  While FM did suggest how 5.6% may have been arrived at, LF said that the figure was 11%.  Further the figures as set out in the notes of the Management Meeting presented to the Panel by FM which outline the number of samples undertaken by the Registrant, are, at best, totalled inaccurately, so the figures cannot be relied upon.  Therefore the Panel was not satisfied this has been proved to the requisite standard.

Particular 5: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
in or around May 2011, you amended figures within reports for the National Commissioning Group (“NCG”) service and/or collated the figures inaccurately.

68. LF’s evidence was that the Registrant had amended the figures which the Registrant had previously submitted to NCG indicating a 30% change. These figures were submitted monthly. LF accepted that this may have been because an error was being corrected, or because figures were collated inaccurately. The Registrant’s evidence is that she was embarrassed by the errors and notified the NCG that she had made the errors. While LF’s evidence is that errors should be corrected by amending the subsequent month’s figures rather than amending figures already submitted, this has not been alleged in this Particular. LF’s evidence and the Registrant’s admissions are sufficient to find this Particular proved.

Particular 6: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
in or around July 2011, you did not complete FACS analysis triplicate of cells in a timely manner.

69. ST in her evidence indicated that the Registrant, “had 4 weeks to complete tasks” the results of which were due to be given to ST at the end of July 2011. This was the time allocated between performance management meetings. ST said that, “plenty of time was given to do so.” There were monthly meetings to discuss results and plan experiments. She said that the Registrant had been trained on the SOP by someone from another lab and it was ‘a very standard technique.’ The Registrant was “only able to do it twice as she did not have enough cells to do it a third time.” The Registrant evidence was that she was absent from work due to illness for some of that time and that in her absence the cells were contaminated. The Registrant said she raised this with ST who took the view that despite intervening matters not going to plan, that four weeks should have been sufficient. ST said the Registrant had not planned the experiment properly and had not grown a sufficient number of cells. Therefore she only completed two out of the three experiments.

70. The Registrant appeared to contradict her own evidence during the hearing saying that she, “did them and did them on time” and that, “it was never raised,” with her. While the term “timely” is subjective, given the evidence of ST about what should have been sufficient time, and from the Registrant about delays, the Panel finds this Particular proved.

Particular 7: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
in or around June 2011, you did not label the biopsy slides fully.

71. LF’s evidence was that biopsy slides “were not fully labelled” by the Registrant. The Registrant admitted that there were issues with the labelling of biopsy slides.  She said that there were problems, at one point indicating that the printer was not working, but in her evidence said that this was a problem with a computer lead. The Registrant’s evidence was that each biopsy slide nonetheless had a “unique reference number” meaning that there could be no error as to their identity. She was clear in her cross examination of LF that the slides were not labelled due to an incident with the printer which occurred sometime after her performance management meeting in May 2011. RP confirmed the importance of full labelling of patient’s slide using more than a single identifier.

72. The Panel accepted the Registrant’s admission, combined with the evidence of LF and RP. The Panel was satisfied that the slides were not labelled fully by the Registrant in or around July 2011. Accordingly this Particular is found proved

Particular 8: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
on more than one occasion, you did not top up the liquid nitrogen for the biopsy samples in accordance with the liquid nitrogen rota.

73. LF gave evidence that this happened more than once and while she could not remember the dates on which this occurred, she nonetheless did recall more than one instance when someone else had to do this. The Registrant admitted that she went home early when unwell on one occasion, and on another occasion was on annual leave during which time she had been on the rota to complete the liquid nitrogen top up.  The Registrant added context to this Particular by explaining that two people were on the rota each week to act in combination with each other and cover for each other, and she was on the rota one week in three. While it was not disputed that other people did top up the liquid nitrogen, the fact that the Registrant did not do it on two occasions when she was on the rota to do so is not in dispute.

74. LF’s evidence was that she would not have said the Registrant ‘forgot’ to top up the liquid nitrogen if she was sick or on annual leave. She explained to the Panel that there were occasions when the Registrant “didn’t do her liquid nitrogen duty.”  The Panel preferred the evidence of LF who was clear that on occasions the Registrant had not topped up the liquid nitrogen as she had gone home and forgotten.

75. In a letter to the Registrant dated 18 October 2011 from FM he notes that “contribution to the liquid nitrogen rota is still a concern. On one occasion you do not do this task and had to be covered by colleagues.” In all the circumstances the Panel finds this Particular proved.

Particular 9: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
in or around December 2011, you did not achieve consistent inter experiment results for patient cells.

76. ST’s evidence was that in inter-experiments you repeat the same experiment using the same technique more than once and compare the results. This experiment tested the Mean Fluorescent Intensity (MFI) and the variation was between 46 and 8 which ST said was too wide a variation to be deemed consistent. 

77. In her witness statement ST said that the Registrant “was instructed to repeat this experiment twice in the same week, she did not follow the instructions. I explained that if one of the two results were inconsistent then she should have done one experiment again the next week but for some reason when she gave me all the results she had repeated one sample four times. When I asked her why she had repeated a sample four times she explained that she had decided by herself what to do.”

78. ST’s evidence was that the Registrant’s results were “completely inconsistent”.  The Registrant in her evidence acknowledged that the variability of results was inconsistent.  The Panel found the Particular proved on the basis of ST’s evidence and the Registrant’s own admissions.

Particular 10: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015:
you did not keep contemporaneous records of your work, in that you:

a) Did not record details of your working time on 28 October 2011.

b) Did not record details of your working time on 3 November 2011.

c) Did not record work completed after a completion of tissue culture work started at 1.30pm on 11 November 2011.

d) Did not record details of your working time on 14 November 2011.

e) Did not record details of your working time after 3.15pm on 21 November 2011.

f) Did not record details of your working time after 3.15pm on 24 November 2011.

g) Did not record details of the experiments which you conducted on 25 November 2011.

79. ST’s evidence was that the Registrant was asked to keep a record of the time she spent in ICH to improve her productivity and time management. The Registrant was taking two or three times as long to do her work compared to others. ST said that the Registrant had been asked to record information such as her time of arrival, her experiment start and end time, plus the time she left work.

80. ST said that when she examined the lab books she found the omissions relating to Sub-Particulars (a)–(g). The Registrant’s evidence is that she recorded what she was asked to and that she could not have been asked to record the Sub-Particulars now listed at (a)-(g), or that she would have had no reason not to, especially given the long hours she worked, far in excess of her contracted hours.  She does however accept that the Sub-Particulars listed at (a)-(g) are not matters which she did record in her lab book.

81. The Panel accepted the evidence of ST. She checked the Registrant’s lab books and noted the omissions in Particulars 10 a) to g).  The Panel also noted the letter to the Registrant from FM dated 5 December 2011 which records these omissions as discussed with the Registrant at the meeting of 1 December 2011. 

82. Given the Registrant’s admissions and ST’s evidence the Panel found the Particular proved.

Decision on Grounds

83. The Panel having found the majority of matters proven went onto consider whether these facts amounted to the statutory grounds as alleged.  The grounds alleged are misconduct and/or lack of competence. The Panel has had regard to the representations of both parties who provided written submissions and also had regard to the advice of the Legal Assessor.

84. The Panel considered each Particular of the Allegation in turn in assessing whether a statutory ground was made out. The Panel has taken into account the relevant guidance issued by the HCPC, and in particular the Standards of Conducts, Performance and Ethics relevant to HCPC Registrants and the Standard of proficiency for Biomedical Scientists.  The Panel is conscious that breaches of these provisions does not automatically establish either a ground of misconduct or lack of competence.

85. The Panel weighed up the evidence in respect of each Particular of the Allegation. Lack of competence was considered in instances where there was a lack of knowledge, skill or judgement that the Registrant should have had.  Misconduct was considered in serious instances, where the Registrant acted in a way she should not have done or failed to act when she should have. 

Particular 1: During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: in or around October 2011, you did not communicate with your line manager about the results of staining.

86. The Panel considered whether the Registrant communicated directly with the Consultant because she did not know that her staining results were incorrect. However, according to LF at the Registrant’s level she knew, or should have known that her staining was incorrect and she should have communicated this directly to LF as her line manager. The Registrant herself said that in her previous role she or others in the laboratory would QC (quality control) the results of staining before sending them to the Consultant. From this it appears that the Registrant knew she should check the results. The Panel concluded that she would or should have known when there was an issue with the staining and that this would have necessitated communication with her line manager.

87. The Panel noted that there was evidence that the Registrant had successfully completed staining prior to this post as well as subsequent to it.  The Registrant’s witnesses considered her competent whilst in her previous roles and reported that she had been chosen to train other more junior staff such was her professional experience. This is persuasive evidence that the Registrant knew how to stain cells and what was good procedure to follow in this regard.

88. The Registrant’s evidence was that on occasion she would leave the slides on the microscope for LF.   The Panel concluded that this was not a satisfactory method of communication.  LF’s evidence was that a consultant had come to her complaining about the results of staining and this was the first time that LF was aware of an issue with the quality.  The Panel concluded that the Registrant would or should have known that there was a quality issue and that this necessitated communication with her line manager.

89. LF and RP were clear as to the serious difficulties this caused and how it impacted on others in the laboratory and with Consultants. RP said it was a waste of resources and potentially caused delays in diagnosis of seriously ill patients.  The Registrant’s evidence was that she perceived the environment in which she found herself, extremely difficult to work in, where she was often “shouted at.” The Panel accepted that both accounts of RP and the Registrant could be correct. Nevertheless, the Registrant as a Band 7 Biomedical Scientist, by not communicating with her line manager, had failed to fulfil an important part of her role. The Panel concluded that such a failure was serious and amounted to misconduct.

Particular 2. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: On or around 28 October 2011, it became apparent that you had not updated the ongoing document as required.

90. The Panel took into account what was said about the nature and purpose of the document. It was intended to support a weekly multi-disciplinary meeting. The Panel concluded that the Registrant not updating the document, while unhelpful, was not so serious as to cross the threshold of either a lack of competence or misconduct.

Particular 3. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: Between June 2010 and December 2010, you conducted flow cytometry experiments which were not accurate enough to be considered for research.

91. It is accepted that flow cytometry experiments involve specialist skill which was outside the normal field of experience of the Registrant as a Biomedical Scientist. However, the job which the Registrant accepted required her to undertake this task on a regular basis.  RP explained there were a number of transferable skills to the research role in ICH, such as cell staining.  The Registrant accepted she had received training in cell culture, how to grow cells, how to split them and how to use a flow cytometry machine. Despite this training the Registrant did not feel confident in her skills in this area and felt unsupported when she asked for help.

92. Whatever the difficulties of the working environment in which the Registrant found herself, the Panel considered that her skills in conducting the flow cytometry experiments were not sufficient. These are long and complex experiments involving multiple procedures; good organisational skills and timing are critical in order to achieve accuracy.  A number of changes were made to try and alleviate the issues for the Registrant to acknowledge the difficulties she faced managing her workload at the two sites ION and ICH. 

93. The Registrant herself accepts that she was unable to complete the required flow cytometry experiments satisfactorily, albeit she suggests this was because the methodology had not been clarified. Whatever the reason for the inadequate completion of her required task, the Panel accepted ST’s evidence that over the course of a six-month period such competency should have been obtained or sufficiently addressed by the Registrant in her Band 7 role. 

94. Taking all of these matters into account, the Panel finds that this ultimately can be categorised as lack of competence given the evidence of a fair sample of work showing Registrant’s lack of skills over a lengthy period.

Particular 4. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: Between 2009 and 2011, your productivity of biopsy samples entered with the institute’s computer system only accounted for 5.6% of the total samples entered within the ION centre.

95. This Particular was found not proved.

Particular 5. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: In or around May 2011, you amended figures within reports for the HCG service and/or collated the figures inaccurately.

96. The Registrant’s senior colleagues could not be clear why the Registrant amended these figures.  While figures deliberately and fraudulently altered would have serious consequences, there is no suggestion that this was the case here.  LF accepted that it could be that the Registrant was attempting to correct incorrect figures or because previous reporting was inaccurate.  Either way, while the rationale was not clear, it was apparent to both the Registrant’s colleagues and the Panel that no mischief could be attributed to this Particular.  Accordingly, neither misconduct nor a lack of competence is found.

Particular 6. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: In or around July 2011, you did not complete FACS analysis triplicate of cells in a timely manner.

97. The Registrant was given a number of weeks to complete the analysis and ST’s evidence was this was an ample amount of time but the Registrant had not planned it properly so was unable to complete it. The Registrant’s evidence was that one of the reasons for not completing the experiment was that she was unexpectedly ill and another member of staff was tasked with feeding the cells, which she found could not be used on her return to work. However the Panel has accepted the evidence of ST that the Registrant’s planning was not sufficient to complete the experiment in a timely manner. While this Particular only deals with a series of experiments in July 2011, the Panel noted that the deficiencies in relation to this Particular were echoed in other Particulars and reflect the Registrant’s work over a significant period of time. This Particular taken in conjunction with Particulars 3 and 9 collectively amounts to lack of competence.

Particular 7,  During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: In or around June 2011, you did not label the biopsy slides fully.

98. The Panel heard from the Registrant and accepts as a matter of routine, that slides would ordinarily come into the laboratory already labelled with an identifier. RP’s evidence was that further details were required to complete the label. RP gave evidence that the Registrant was expected to add further information when labelling the slides as it was important to fill in information relating to patient demographics. Full labelling was fundamental to research and the diagnostic process at the laboratory and for NHS work. The Registrant herself mentioned she understood the extent of labelling required. While RP said that, to his knowledge, the Registrant’s conduct did not cause any slide to be misidentified or created any problem for a patient, the Panel accepted that it was a necessary and important part of diagnostics and there was a risk to patients if the slides were not labelled fully.

99. The Panel noted that the Registrant gave different reasons for not having labelled the slides as expected.  These ranged from the suggestion that this was not a Band 7 task, that it was time consuming, that a printer was not working and that she could not work a cable connecting the printer.

100. The Panel concluded that the Registrant, irrespective of the difficult circumstances that she found herself working in, together with feeling unsupported by her colleagues, did know what she should have done and not doing it showed a serious lack of regard for her duties as a Biomedical Scientist. Whilst not of itself so serious as to constitute misconduct, given that the slides were already partially labelled, taken in combination with Particulars 1 & 8, Particular 7 amounts collectively to misconduct.

Particular 8. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: On more than one occasion, you did not top up the liquid nitrogen for the biopsy samples in accordance with the liquid nitrogen rota.

101. The Panel considered that not completing a task which then has to be covered by colleagues is such that the Registrant’s lack of action impacts others working alongside her. The Registrant appeared to understand the importance of topping up the liquid nitrogen levels and in her evidence mentioned that she was the one who insisted that those working with liquid nitrogen wear appropriate lab coats. As such, the Panel concluded this did not appear to amount to a lack of competence. 

102. The Registrant’s evidence was that she was aware of systems in place such as two people being placed on a rota together and alarms sounding when the liquid nitrogen levels became low so there was little possibility of the samples being compromised.  JL, a senior technical at ION worked with the Registrant to fill the liquid nitrogen tanks holding tissues and cells for their respective teams on a regular basis. JL describes the Registrant as “incredibly responsible with this duty and I have observed her double and triple checks locks, valves and liquid nitrogen levels each time, to ensure that she done the job correctly for her group” The Panel noted these observation of JL however, also noted that JL was not present at the hearing, was not called to give evidence and the Panel therefore did not have the opportunity to test her evidence in the same way as it tested the evidence of the HCPC witnesses on this matter. As the Registrant did not address the task with the necessary diligence there was a potential consequences of 7,000 biopsy samples stored there being destroyed. This failure to follow instructions is particularly concerning given that the Registrant had received a warning about not fulfilling this task as part of the performance management. This means that in all the circumstances the Panel finds this Particular amounts to misconduct.

Particular 9. During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: In or around December 2011, you did not achieve consistent inter experiment results patient cells.

103. Both ST and the Registrant agreed that there was more variability in the Registrant’s inter experiment results than was expected.  ST went further and described the Registrant’s results as “completely inconsistent.” ST was concerned that the Registrant did not follow her instructions and, in fact, repeated one sample four times which was unacceptable for this inter experiment. It appears that the Registrant did what she could with the limited number of cells and did not appreciate that this was not an appropriate way to conduct an experiment. While this Particular only deals with a series of experiments in December 2011, the Panel noted that the deficiencies in relation to this Particular were echoed in other Particulars and reflect the Registrant’s work over a significant period of time.  In all the circumstances the Registrant’s inability to achieve consistent results in these particular circumstances demonstrated a lack of competency in conducting flow cytometry in the research environment.

Particular 10.  During the course of your employment as a Biomedical Scientist at Great Ormond Street Hospital, between 15 June 2009 and 9 June 2015: Did not keep contemporaneous records of your work, in that you:

a. Did not record details of your working time on 28 October 2011.  

b. Did not record details of your working time on 3 November 2011.      

c. Did not record work completed after a completion of tissue culture work started at 1.30pm pm on 11 November 2011.                                                       

d. Did not record details of your working time on 14 November 2011.    

e. Did not record details of your working time after 3.15pm on 21 November 2011.        

f. Did not record details of your working time after 3.15pm on 24 November 2011.      

g. Did not record details of the experiment which you conducted on 25 November 2011.

104. The Registrant’s only possible explanation for why the omissions occurred on these 7 occasions was that she could not have been asked to record the details given that she recorded the necessary details on other occasions and would have no reason to omit certain dates, particularly given the excessive hours she worked.  The Registrant’s long hours were noted and a cause for concern by senior members of staff given that this was not matched by results she obtained and was one of the reasons that she was asked to detail her working day.  Providing this information was in the Registrant’s own interests as they were trying to improve her time management and organisation. The Panel found that these 7 omissions while she was under performance management must have been frustrating and disappointing for colleagues but could not be considered so serious or significant so as to amount to either misconduct or a lack of competence.

Conclusion of Grounds

105. The view of the four HCPC witnesses is that the Registrant demonstrated a fundamental inability to perform to the requisite standard of a Biomedical Scientist working as a Band 7 in a specialist research laboratory of the type she found herself in.  While there is evidence of the Registrant being shown how to do experiments and being expected to share any concerns or ask for help if this was needed, performance measures over years failed to ensure that her performance improved sufficiently.  More than one HCPC witness demonstrated that they were exasperated by the Registrant’s apparent inability to work as they wanted her to but acknowledged that they were not clear that her actions stemmed from errors she made due to her inexperience or because she thought that she knew better than others.  Her tendency to attribute her inability to get the desired results to other factors was remarked upon by LF, FM, RP and ST.

106. By her own admission, the Registrant had found herself in an environment where she did not know how to get the results others wanted but did not feel she could ask for help because she would either get “shouted at” or be told that she should know what to do. This impression is supported by KC who indicated that the Registrant was treated in a negative way by those senior to her, and even complained about the uncomfortable impact it had on others present. “I noticed more than once that when Ms Bhardwaj raised an issue she was ignored or talked to in a quite dismissive, sometimes even hostile manner.”  KC said that she, “witnessed on more than one occasion if clarification was sought by Ms Bhardwaj, the response to this was regularly irritated or dismissive.”

107. Set against this are the HCPC witnesses. FM spoke of the Registrant’s lack of insight when making mistakes “again and again”, ST spoke of the Registrant not following SOPs and not being capable, RP spoke of her inability to achieve workable results over may years and LF said there was “always something” that went wrong for the Registrant. Whatever the reasons, a picture is drawn of an environment where the Registrant was not able to learn how to do the job expected of her.

108. The Panel has borne in mind that this was the first post that the Registrant had in a specialist research setting of this kind and that she was part of a small team undertaking cutting-edge research.  It was aware that she had not worked in a team of this particular type before. The Panel has considered what those who have written and offered to be called on behalf of the Registrant have said.  Those who worked with her prior to this post refer to her in warm terms remarking on her cutting and staining of muscle sections, her academic growth, (completing an MSc in Histopathology, being awarded a Distinction, and joint first prize for her research project), her ability to work independently and being adaptable and able to willingly extend her working hours in response to unexpected situations or to see that tasks were completed.

109. When describing her qualities in previous roles the Registrant’s honesty was described as one of her strengths and her aptitude for specialist muscle work was praised.  Whilst working with the Registrant JH said not all the work she was expected to do was routine and the Registrant had sole charge of all adult muscle biopsies commenting that “During her time here, there were NO complaints from the pathologists regarding the adult muscle service.” [Her emphasis.]

110. However the Registrant accepted a role as a Band 7 Biomedical Scientist which would split her work between routine and research work which meant that only 50% of her time would be spent on muscle biopsy work.  That she found the training inadequate and she was stressed by the work may have further compromised her ability to improve but having been employed as a Band 7 Biomedical Scientist that is the standard she should have obtained.  That she was a novice in certain areas of skill could not be considered relevant after an initial period of time as she must show the same standard of care as a reasonable person with that particular skill.

Decision of impairment

111. In reaching its decision, the Panel has taken into account that the test of impairment is expressed in the present tense and must be assessed today. Whether or not the Registrant’s Fitness to Practise is impaired is a matter solely for the judgment of the Panel. The Panel has considered the representatives of both parties and the advice of the Legal Assessor.  It had taken into account the guidance issued by the HCPTS entitled, “Finding that fitness to practice is impaired”. As directed the Panel has considered whether the Registrant’s acts and omissions as found are capable of remedy, have been remedied and whether there remains a risk of repetition.

112. The Panel took account of the Registrant’s references which speak highly of her abilities as a Band 6 locum Biomedical Scientist in a range of jobs, each lasting some months since August 2015. The Panel also took into account the evidence from FS and JH attesting to her previous skills as a Biomedical Scientist in a diagnostic setting. 

113. The Registrant had not worked in a research environment such as ICH previously or since. The findings of the Panel show that it was in the experimental work she carried out, or should have carried out in the research environment at ICH that the Registrant struggled and lacked competence. At ION where the work the Registrant was doing was within her field of expertise such as staining, labelling of slides and topping up of liquid nitrogen, the Panel has made findings of misconduct

114. The Panel received a number of references and testimonials from people who had worked with the Registrant both prior to and since the time of the Allegation. Several people speak highly of the Registrant’s work ethic, skills and one remarks that she would be “more than delighted” were the Registrant to work with her again. The Registrant thrived doing work such as muscle biopsy work in roles prior to and post her work at ION.

115. Nevertheless, whatever difficulties the Registrant faced at ION and ICH she has not demonstrated sufficient insight, or recognition of her conduct and lack of competence, but rather sought to attribute this to a number of factors including inadequate training and the attitude of her colleagues towards her. While she did not put any patients at direct risk of harm at ION there was a potential for this to occur given the nature of the work she was undertaking.

116. Insofar as remediation, there is no evidence that the Registrant has undertaken any further training in flow cytometry since she left this post but it is conceded that much of this training would only be available on-the-job.  The Panel was reassured that the Registrant had not taken up the offer of any Band 7 Biomedical Scientist posts which were similar to the job in which she had had such a poor experience. It considered this to be a demonstration of some insight into her lack of capability without further training to undertake the types of tasks she previously did not complete satisfactorily. However the Panel has no assurance from the Registrant that she will not apply for such roles after this hearing is concluded without first satisfying herself that there would be adequate training for her to complete necessary tasks competently. The Panel was not satisfied that she has demonstrated sufficient insight at this stage to be assured that she would not apply for such a research role again.

117. The Registrant’s responses to the Particulars of the Allegation focused on her own lack of wellbeing.  She regrets that she found herself in this position, which has been understandably traumatic, but does not express regret or insight into how she would behave in the future if she found herself in a similar position. She does not appear to be aware of the seriousness of her actions or omissions or be able to take responsibility for them or understand the potential impact on patients, colleagues and the reputation of the profession. Throughout the proceedings there was no indication from the Registrant that the Particulars proved were due to acts or omissions on her part.  

118. Insight on the part of the Registrant is crucial.  Without the Registrant recognising how problems that arise need to be addressed, similar issues could occur in future.   There are different ways of insight being demonstrated.  These can include the ability to step back from the situation and consider it objectively, recognising what went wrong, accepting their role and responsibilities at the material time, appreciating what could and should have been done differently, and understanding how to act differently in the future to avoid reoccurrence of similar problems.

119. The absence of such insight calls into question her ability to work as a Biomedical Scientist without restriction. The Panel cannot be confident that she would not behave in a similar way in the future and concluded that there is a risk of repetition of a lack of competence if she were to work in a specialist research setting without the adequate training and support she requires. The Panel also considered that there is a risk of repetition of misconduct, if the Registrant fails to develop the necessary insight to appreciate that personal considerations cannot take priority over professional obligations.  Accordingly, the Panel has therefore found insofar as the personal component of impairment is concerned, the Registrant is impaired.

120. In relation to the public interest element of its decision, the Panel has concluded that a finding is also warranted.  This is a practitioner who lacks competence in a specialist research setting at Band 7 level and appeared to allow poor working relationships to impact upon her practise.  A member of the public would be concerned if she were permitted to practice without restriction, in light of the Panel findings.

121. The Panel therefore finds that the Registrant’s fitness to practise is impaired also in relation to the public component.

Decision on Sanction

122. The Registrant gave evidence at the sanction stage, acknowledging that she accepted the Panel’s finding of Impairment, apologised for her behaviour and demonstrated some further insight by detailing what steps she takes in her current job to minimise misconduct.

123. In considering what sanction, if any, to impose, the Panel has taken account of the submissions made by Mr Millin, Mr Summerfield and the advice of the Legal Assessor.  Mr Millin has said that the decision on what sanction, if any, to be imposed, is a matter for the Panel. He commended the HCPC’s Indicative Sanctions Policy to the Panel and said that testimonials before the Panel could be taken into consideration but referred to the case of Bolton v Law Society (1994), for an authority to support the contention that the reputation of the profession is more important that the fortunes of an individual member.

124. Mr Summerfield provided written submissions on sanctions, which in essence put forward the argument that these proceedings have been sanction enough.  He identified the multiple learning points that the Registrant can evidence and the absence of any incident since the index events, with testimonials that support good practice. He said that should a sanction be required, a caution of a minimum statutory period could be imposed, but that conditions would be excessive, given the extensive mitigation that the Registrant has put forward.  He distinguished the case of Bolton from the current case, which while agreeing with the principle it espouses, noted that Bolton was a case of dishonesty, which this is not.

125. He said that the Registrant’s working pattern as a self-employed practitioner means that a Conditions of Practice Order which required supervision or a mentor would not be workable. However, he clarified that the Conditions Bank is available to the Panel and submitted that the Registrant would adhere to any conditions.

126. The Panel considered the aggravating and mitigating features before them. While heartened that the Registrant has acknowledged that she is not suited to research work, it was concerned that she only categorised a possible return to such an environment as “unlikely”.  This suggested that her insight has yet to develop, given the difficulties she encountered during her time at GOSH.  Further a lack of evidence of remediation in how she has addressed her misconduct increases the likelihood of repetition of events were she to find herself in a similar environment again.

127. The Panel has taken into account the mitigation advanced by the Registrant, namely that the matters all occurred when the Registrant held a particular role for a particular employer during the period 2010 -2011 and that three years have elapsed since she was dismissed from this role; that she has accepted the Panel’s finding of impairment and apologised; that she is committed to only taking on roles for which she has relevant training and noted that she is not suited to research. The Panel also considered that no further incidents have occurred or been reported to the HCPC, and that the Registrant has had a previously unblemished career of many years.

128. The Panel has identified the risk that the Registrant poses and seeks to address that in the least restrictive way that still allows adequate public protection. The concern was that of the Registrant’s ability to deal with future occurrences where she did not have the relevant training and/or encountered poor working relationships. The Panel has referred to the Indicative Sanctions Policy in arriving at a decision.  

129. In view of the seriousness of the case, to take no further action, would not be appropriate as it fails to address the risks of practicing without restriction.

130. Mediation was discounted as this is not a process where there needs to simply be resolution between two parties. 

131. The imposition of a Caution Order was considered but discounted as this is not a case where a caution would be sufficient or appropriate to maintain confidence in the profession and the regulatory process.
 
132. The Panel went on to consider the imposition of a Conditions of Practice Order in terms of addressing the concerns identified in reaching its decision on Impairment.  The Panel was of the view that there are appropriate conditions of practice to address these concerns.

133. Given the recent demonstration of developing insight, the Panel considered that the period of 12 months would allow the Registrant to further develop insight and demonstrate remediation and coping strategies.
 
134. The Panel did consider whether the Registrant’s practise needed to be suspended but considered this disproportionate in circumstances where she has been practising safely without concern as a Grade 6 Biomedical Scientist role for the last three years.

Interim Order

135. Mr Millin applied for an Interim Order on the basis of the substantive order that the Panel had considered necessary to protect the public and is otherwise in the public interest.  Having heard what Mr Summerfield had to say and taking advice from the Legal Assessor, the Panel determined that an Interim Conditions of Practice Order be imposed.  This was necessary to protect members of the public and was otherwise in the public interest, given the findings of the Panel to date.  The Interim Order will provide protection until the substantive order comes into force, and cover any appeal period.

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

 

Order

ORDER: The Registrar is directed to annotate the Register to show that for a period of 12 months from the date that this Order comes into effect, you, Ms Nisha Bhardwaj:

1. You must not undertake flow cytometry in a research setting, without training and competency assessment to the ISO15189 Standards.

2. You must evidence training regarding conflict management and to provide this to the HCPC one month before any review of these conditions.

3. You must provide a reflective statement on communication strategies in difficult environments and provide this to the HCPC one month before any review of these conditions.

4. You must keep your professional commitments under review and seek the support of Occupational Health or your general practitioner if you experience undue stress from work.

5. You must cease practising immediately if you are advised to do so by Occupational Health or your general practitioner.

6. You must inform the following parties that your registration is subject to these conditions:

a. Any organisation or person employing or contracting with you to undertake professional work as a Biomedical Scientist;

b. Any agency you are registered with, or apply to be registered with, (at the time of application) as a Biomedical Scientist;

c. Any prospective employer as a Biomedical Scientist (at the time of your application).

 

Notes

A future reviewing Panel may additionally be assisted by up to date reference from any employer.

This order will be reviewed again before its expiry on 16 August 2019.

Hearing History

History of Hearings for Miss Nisha Bhardwaj

Date Panel Hearing type Outcomes / Status
19/07/2018 Conduct and Competence Committee Final Hearing Conditions of Practice
10/05/2018 Conduct and Competence Committee Final Hearing Adjourned part heard
13/11/2017 Conduct and Competence Committee Final Hearing Adjourned part heard