Mr Bernard Watkins

Profession: Biomedical scientist

Registration Number: BS39593

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 22/03/2018 End: 17:00 23/03/2018

Location: Cardiff Marriott Hotel, Mill Lane, Cardiff, South Glamorgan, CF10 1EZ

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

(as amended at the Final Hearing)

During the course of your employment as a Biomedical Scientist with Cwm Taf University Health Board, you:

1. In or around October 2016, used an isolate obtained from a faecal sample belonging to another patient in order to indicate that you had a salmonella infection.

2. In carrying out the action described at paragraph 1, you:

a. obtained confidential patient information without authorisation and/or clinical reason;

b. obtained an isolate from a patient sample without authorisation and/or clinical reason;

c. misused an isolate from a pathogenic sample by contaminating your own faecal sample without authorisation and/or clinical reason.

3. The matters described at paragraphs 1 and/or 2 constitute dishonesty.

4. The matters set out in paragraphs 1 to 3 constitute misconduct.

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

Finding

Preliminary Matters

Proof of Service

1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been posted on 12 January 2018 by first class post, to the address shown for the Registrant on the HCPC Register. The Notice of Hearing confirmed that the hearing would be taking place at this venue. The Notice was also served by email to the Registrant’s email address.

2. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) (as amended).

Proceeding in Absence

3. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence. Ms Parry, on behalf of the HCPC, applied to hear the matter in the Registrant’s absence. She confirmed that there had been no communication from the Registrant since his returning the Response Proforma, which was received by the HCPC on 8 February 2018, and in which he said that he did not intend to appear in person at this hearing. There was no application to adjourn the hearing.

4. The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

5. There has been no application to adjourn and no indication from the Registrant that he would attend on any future date, and therefore adjourning and re-listing this hearing would serve no useful purpose. This is a substantive hearing and there is a public interest in ensuring that it is considered expeditiously.

6. The Panel is satisfied that it was fair and reasonable to conclude that the Registrant’s absence is deliberate and demonstrates a voluntary waiver of his right to be present. The Panel determined that it was in the public interest to proceed in the Registrant’s absence.

Application to amend

7. Ms Parry then applied to amend the Allegation to correctly name the Registrant’s employer and correctly identify the actions of the Registrant in relation to the sample. The Registrant was told about the application to amend in a letter of 14 July 2017. The employer’s incorrect name had first been raised by the Registrant in an email dated 3 May 2017. In meetings with KW, he also detailed the way in which he dealt with the sample, and this accorded with the suggested amendments to Particular 1. There was no objection to the proposed amendments from the Registrant. The Legal Assessor advised that the Allegation could be amended provided that the Panel was satisfied that no injustice was thereby caused. The Panel was satisfied there was no injustice caused and granted the amendment. It accepted that the amendments helped to ensure clarity in the Allegation, but did not change the nature of it or make it more serious for the Registrant.

Background

8. The Registrant was employed as a Band 6 Specialist Biomedical Scientist at the Microbiology department of Cwm Taf University Health Board (Cwm Taf). He had been employed there since September 1992.

9. The Registrant worked an out-of-hours shift from 8pm Saturday 8 October 2016 to 8am Sunday 9 October 2016. On Monday 10 October 2016, the Registrant telephoned work saying that he was unwell and would not be attending work because of vomiting and diarrhoea. He said that there was a faecal sample of his in the office which needed to be processed. The following day, Tuesday 11 October 2016, initial tests proved negative on the faecal sample. Then, on Wednesday 12 October 2016, Salmonella was isolated from the enrichment culture. The Registrant telephoned work on the same day to say that the vomiting and diarrhoea had ceased, but he had developed a cold. The Registrant was contacted and advised to see his GP for another sample, which subsequently tested negative for Salmonella. The Registrant attended work on Wednesday 19 October 2016 and admitted that he had deliberately tampered with his faecal sample in order to show indications of Salmonella by using an isolate from a patient sample, which he had checked was positive for Salmonella.

Decision on Facts

10. The Allegation was read out. In the absence of the Registrant, the Panel appreciated that it would have to decide each particular, despite the admissions made by the Registrant in the Response Proforma. The Panel bore in mind the burden and standard of proof and considered each particular separately.

11. The Panel first considered the oral evidence. The HCPC called one witness, KW. It also considered the written statement of CK. The Panel examined all of the evidence carefully, including the responses made by the Registrant in the meetings with KW and the investigation meeting with CK on 15 November 2016.

12. The Panel considered that the evidence given by KW was consistent and truthful. She was an honest witness and did not appear to bear any grudge against the Registrant. She met with the Registrant on 19 October 2016, during which the Registrant made a number of unsolicited admissions. The Panel had no reason to disbelieve her evidence in relation to those admissions and found her to be a credible witness.

13. The other evidence presented by the HCPC was the witness statement of CK. The Panel noted that this statement corroborated the other evidence put forward. There were no apparent inconsistencies.

14. The Panel also carefully considered the statements and admissions made by the Registrant during his meetings with KW and CK, and the Response Proforma sent to the HCPC by him. The admissions appeared to be genuine and there were no apparent inconsistencies.

Further amendment to the allegation

15. At the conclusion of the evidence given by KW for the HCPC, it was clear that a Salmonella isolate had been taken from the faecal sample obtained from the patient in order to culture bacteria. This evidence was reflected by the admissions made by the Registrant during his meeting with KW. The Panel considered that the Allegation should be amended to reflect this fact, as well as reflecting the fact that although the faecal sample belonged to the patient, the position as to the ownership of the isolate was not clear. At the Panel’s invitation, Ms Parry agreed that amending the Allegation would more accurately reflect the evidence and avoid any confusion. The Legal Assessor gave advice that such an amendment was allowed if the Panel was satisfied that no injustice was caused by the amendment. The Panel allowed the amendment and determined that there was no injustice and that it made no difference to the previous admissions made by the Registrant. The amendment truly reflected the evidence and avoided any confusion. It did not substantially change the Allegation or make it more serious for the Registrant.

16. The Panel then considered the individual particulars.

Particular 1 – Proved

17. The Panel found this particular proved on the basis of the admissions made by the Registrant. These admissions were substantiated by the oral and written evidence of KW and the written evidence of CK. They were also corroborated by the Response Proforma sent by the Registrant to the HCPC.

Particular 2(a) – Proved

18. The Panel found this particular proved on the basis of admissions made by the Registrant, as well as the oral and written evidence of KW and the written evidence of CK. During the meeting with KW, the Registrant had admitted accessing confidential patient records. He said he could not remember the patient details, but he nevertheless obtained confidential patient information without authorisation or clinical reason.

Particular 2(b) – Proved

19. The Panel found this particular proved on the basis of admissions made by the Registrant and the oral and written evidence of KW and the written evidence of CK.

Particular 2(c) - Proved

20. The Panel found this particular proved on the basis of admissions made by the Registrant, as well as the oral and written evidence of KW and the written evidence of CK.

Particular 3 – Proved

21. The Panel found this particular proved in its entirety. The Panel considered this particular and the question of dishonesty in the light of the recent decision of the Supreme Court in Ivey v Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67. It noted the part of the judgment of Lord Hughes:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

22. The Panel applied this by asking three questions:

• What did the Registrant do?

• Why did he do it?

• On the basis of the answers to points 1 & 2, would ordinary, decent people think he had acted dishonestly?

23. The Panel considered each particular and looked first at Particular 1. In the facts for this particular, the Registrant had used the isolate from a patient sample in order to contaminate his own faecal sample to misrepresent that he was suffering from Salmonella. This was done in order to deceive his employer into believing that his faecal sample was infected with Salmonella and, consequently, that he was unfit for work. The Panel is in no doubt that ordinary decent people would think this behaviour was dishonest.

24. The Panel then considered Particular 2(a). The behaviour carried out by the Registrant was preparatory for the obtaining of an isolate of Salmonella which he could then use to deceive his employer. The Panel is in no doubt that ordinary decent people would think this behaviour was dishonest.

25. The Panel then considered Particular 2(b). The behaviour carried out by the Registrant was preparatory for the obtaining of an isolate of Salmonella which he could then use to deceive his employer. The Panel is in no doubt that ordinary decent people would think this behaviour was dishonest.

26. The Panel then considered Particular 2(c). The behaviour carried out by the Registrant amounted to the contamination of his own faecal sample with an isolate of Salmonella which he could then use in order to deceive his employer. The Panel is in no doubt that ordinary decent people would think this behaviour was dishonest.

Decision on Grounds

27. Having found all of the facts proved, the Panel went on to consider whether they amounted to misconduct. Misconduct must be serious. The Panel has made findings of dishonesty in relation to the Registrant attempting to deceive his employer by interfering with clinical samples and attempting to present evidence that he was suffering from Salmonella and unable to work. These are serious matters. Fellow practitioners would have been in no doubt that such behaviour on the part of the Registrant was deplorable. There was a breach of patient confidentiality and it had the potential to bring the profession into disrepute. Because of the nature of the disease which he used to contaminate his faecal sample, it also had the potential that widespread infection measures might have had to be instituted. The Panel noted the HCPC Standards of Conduct, Performance and Ethics, and in particular Standard 13, “You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.”

28. The findings of dishonesty are also so serious as to amount to misconduct.

29. The Panel therefore finds misconduct in this case.

Decision on Impairment

30. Having found that the matters found proved amounted to misconduct, the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. It bore in mind the evidence given in this hearing, the submissions made by Ms Parry, the advice of the Legal Assessor and the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”.

31. The Panel considered the two component parts relating to impairment, the ‘personal’ component and the ‘public’ component.

32. It first considered the ‘personal’ component; whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

33. The misconduct amounted to a deliberate course of conduct which was done by the Registrant in order to deceive his employer. He has shown some insight by confessing his actions to KW without any prompting. Nevertheless, the Registrant has made no indications that he appreciated, or was aware of, the risks to his colleagues or the wider public because of his actions. There is some evidence that the Registrant was not well at the time of the misconduct. He has since indicated that he will no longer work as a Biomedical Scientist. He has had sparse communication with the HCPC and has not attended this hearing. There is no evidence of any actions of remediation by the Registrant in order to prevent such an occurrence in the future. Therefore, although the Panel considers that the misconduct may be remediable, insufficient evidence is available that it has been remedied and, therefore, there remains a risk of repetition. The Panel finds that the Registrant’s fitness to practise is currently impaired on the basis of the ‘personal’ component.

34. The Panel then looked to the ‘public’ component of impairment. It noted the passage in the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”, which states that “It is important for Panels to recognise that the need to address the “critically important public policy issues” identified in Cohen - to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession - means that they cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the Allegation arose, the Registrant has corrected matters or “learned his or her lesson”.”

35. The misconduct is serious. There are findings of dishonesty which were done deliberately in order to deceive the Registrant’s employer. The misconduct is so serious that it has the potential of undermining public confidence in the profession if no action were taken.

36. The public would expect the Regulator to take action against a registrant where misconduct is found and particularly where the Allegation includes dishonesty by a registrant in the workplace.

37. The Panel took this into account in deciding whether the Registrant’s fitness to practise is currently impaired, it also took the view that, because of the serious nature of the misconduct, public confidence in the profession and the regulatory process would be undermined if a finding of impairment were not made in this case.

38. For all of these factors, the Panel finds that the Registrant’s fitness to practise is also impaired on the basis of the ‘public’ component in this case.

Decision on Sanction

39. Having found that the Registrant’s fitness to practise is currently impaired by reason of his misconduct, the Panel went on to consider the question of sanction. It heard submissions from Ms Parry. Before reaching its decision, the Panel considered the HCPC Indicative Sanctions Policy and accepted the advice of the Legal Assessor.

40. In deciding what sanction, if any, to impose, the Panel has reminded itself that the purpose of sanctions is not to be punitive but to protect service users and the public interest, although a sanction may have a punitive effect. The Panel has taken into account the principle of proportionality, balancing the interests of the public with those of the Registrant.

41. There is a need to demonstrate to the public and to registrants the importance of adhering to the fundamental requirement of keeping high standards of personal conduct by declaring and upholding proper standards of professional behaviour.

42. There is also a need to maintain public confidence in the profession and the regulatory process.

43. The Panel considered the aggravating and the mitigating factors.

44. The aggravating factors are:

• The dishonesty was serious, a breach of trust, and carried out against the Registrant’s employer for personal gain;

• This was a deliberate, calculated and planned deception, which required several stages of preparation;

• There was a risk of harm as a result of the Registrant’s actions;

• The Registrant’s misconduct went to the heart of his profession and had the risk of seriously undermining the reputation of the profession;

• The Registrant admitted his behaviour only once he thought it would be discovered;

• There was a serious breach of patient confidentiality;

• Apart from his initial admissions, in which he admitted his actions were “stupid”, the Registrant has shown no remorse, given no apology, or acknowledged that his actions may have caused harm to his colleagues, the public, or his employer;

• Although the Registrant has communicated to some extent with the HCPC, he has not engaged in any meaningful way. His non-attendance at this hearing and the fact that he has not provided other information means that he has not explained his actions, offered any acknowledgement that they may have led to harm, or demonstrated any insight;

• The Registrant’s limited engagement in this process means that he has not demonstrated any reflection on the impact of his actions on the profession or the public at large;

• In all of the circumstances, the Panel cannot rule out a risk of repetition in this case.

45. The mitigating factors are:

• The Registrant is of previous good character and has an unblemished history, having been a practising Biomedical Scientist for at least 20 years;

• Although no actual evidence has been produced to this hearing, there are indications that the Registrant was unwell at the time of his misconduct;

• No actual harm was caused to patients;

• The integrity of the patient sample was not jeopardised by the Registrant’s actions.

46. The Panel then looked at the available sanctions in graduating order of severity. The seriousness of this case meant that taking no action was not an option and mediation has not been offered, nor is it appropriate. A Caution Order, even for the maximum duration, was inadequate, as such an Order is only suitable for cases that can be regarded as being slightly more serious than those for which no action or mediation is appropriate. Such an outcome would not protect members of the public or provide the required level of public reassurance.

47. The Panel then considered and excluded the imposition of a Conditions of Practice Order on the grounds that such an outcome was insufficient and unworkable. Based on the seriousness and deliberate dishonesty identified in this case, such an Order would not adequately address the public reassurance requirements or act as a sufficient deterrent for others.

48. The Panel then went on to consider the imposition of a Suspension Order. The maximum Order of suspension that the Panel could impose is a period of 12 months. There would need to be a review shortly before the end of that 12 months to assess the Registrant’s suitability to practise as a Biomedical Scientist. The Panel considers that because of the lack of engagement by the Registrant, as has been identified in the aggravating factors, the Registrant has shown no insight or remorse about his behaviour prior to or during this hearing. There is, therefore, a clear risk of repetition. The Panel carefully considered this sanction but determined that a Suspension Order would imply a possibility of remediation. Because of the seriousness of the Registrant’s misconduct, together with the aggravating factors associated with it, the Panel concluded that this sanction was not sufficient.

49. The Panel therefore concluded that a sanction of suspension was not appropriate or proportionate in this case and went on to consider paragraphs 47 and 49 of the Indicative Sanctions Policy:

“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.

49. Striking off may also be appropriate where the nature and gravity of the allegation are such that any lesser sanction would lack deterrent effect or undermine confidence in the profession concerned or the regulatory process. Where striking off is used to address these wider public protection issues, Panels should provide clear reasons for doing so. Those reasons must explain why striking off is appropriate and not merely repeat that it is being done to deter others or maintain public confidence.”

50. Because of the aggravating factors outlined above and because of the gravity and calculated nature of the dishonesty against the Registrant’s employer, the Panel has concluded that the only available sanction that it can impose in this case is a Striking Off Order.

51. The Panel took account of the fact that the Order is punitive in nature and that it will prevent the Registrant from practising in his chosen profession. This did, however, result from his dishonest behaviour. This consideration was balanced against the need for public protection and reassurance.

Order

That the Registrar is directed to strike the name of Mr Bernard Watkins from the Register on the date this Order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mr Bernard Watkins

Date Panel Hearing type Outcomes / Status
22/03/2018 Conduct and Competence Committee Final Hearing Struck off