Mr Ian Simmonds

Profession: Biomedical scientist

Registration Number: BS62097

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 18/10/2018 End: 16:00 18/10/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

In the course of your employment at Hereford Hospital NHS Trust, whilst on the

HPC register, you:

1. Recorded the incorrect blood group on 12 and 18 February 2009;

2. Incorrectly recorded a different spin group from the microplate group on 20 February and 20 April 2009;

3. Failed to follow sample acceptance procedures on 20 February;

 4. Failed to label blood and urine samples differently on 11 May 2009;

 5. Missed four requests for glucose which did not have the appropriate sample on 11 May 2009;

 6. Underwent a performance review period between 11 May and 09 October 2009, where you continuously demonstrated:

 a. Poor sample labelling;

c. Poor clinical reasoning skills;

d. Poor observation skills;

e. Poor record-keeping skills;

f. Poor quality control prior to processing manual samples; and

g. An inability to work autonomously.

7. The matters set out in 1 – 6 constitute a lack of competence; and

 

8. By reason of your lack of competence, your fitness to practise is impaired.

Finding

Preliminary Matters


Introduction


1. Mr Ian Simmonds (the Registrant) is registered with the HCPC as a Biomedical Scientist. On 24 May 2011 a Panel of the Conduct and Competence Committee found that Mr Simmonds fitness to practise was impaired by reason of lack of competence. The Panel made a Conditions of Practice Order (COPO) to run for 3 years. That initial COPO has been replaced on three previous occasions such that Mr Simmonds has been subject to a COPO in various forms since May 2011.


2. This hearing is a mandatory review of the last COPO which was imposed on 24 November 2017 to run for 12 months.
Service of notice of hearing.


3. The notice of hearing was sent to the Registrant by post on 18 September 2018, to the address provided by him for HCPC registration purposes, thereby complying with the 28 day notice period. The Panel was satisfied that the notice had been properly served.


Application to hear part of the hearing in private


4. At the outset of the hearing Ms Dudrah indicated that the Registrant may wish to raise matters relating to his health during the hearing. She submitted that, if he did wish to refer to his health, those matters should be dealt with in private. The Registrant agreed with this suggestion.


5. The Panel heard and accepted the advice of the Legal Assessor, who advised it that the normal position is that hearings should be heard in public so that the public are aware of the functions being carried out by the Regulator. However, where matters pertaining to the health of the Registrant are referred to the Rules allow for those matters to be dealt with in private if the Panel considers it appropriate to do so. The Panel was satisfied that it was appropriate to deal with matters relating to the Registrant’s health in private and indicated that, as and when such matters were raised, the hearing would go into private session.


Background


6. Ms Dudrah outlined the background to the case.


7. The Registrant graduated with a degree in Biomedical Sciences in 2008. His course of study was an HCPC accredited course and, on that basis, he was admitted to the Biomedical Scientist part of the HCPC register. In late September 2008 he commenced work as a trainee Biomedical Scientist at Hereford Hospital NHS Trust with an 18 month fixed term contract. He started work in the Blood Transfusion Department, moving to the Haematology Department some three months later, returning to Blood Transfusion after about two months. Concerns arose relating to the Registrant’s practice and, at first, an informal performance management policy was invoked. Later, a formal procedure was instigated. The Registrant resigned from his employment in mid-October 2009 before the formal process was completed.


8. On 22 May 2012, the order made in May 2011 was reviewed on the application of the Registrant. The Panel then sitting found that there still was a lack of competence on the part of the Registrant and decided that the Conditions of Practice Order should continue, but on varied conditions.


9. On 20 December 2012, the Order was again reviewed on the application of the Registrant. The Panel then sitting found that there still was a lack of competence on the part of the Registrant and decided that the Conditions of Practice Order should continue, but made further variations to the conditions.


10. On 22 July 2013, the Order was again reviewed on the application of the Registrant. Again, the Panel then sitting found that there was still a lack of competence such that the Conditions of Practice Order should be maintained and, indeed, should be extended so that the duration of the Order ran for a further 3 years from 22 July 2013. The Panel then sitting made amendments to the Conditions.


11. On 2 May 2014, a Panel further considered the Order at a hearing at which the Registrant was present. The Panel took the view that there was no jurisdiction to review the Order at that point in time. That was because neither the Registrant nor the HCPC had applied for the Order to be reviewed. It appears that the Panel took the view that there was no basis upon which a mandatory review under Article 30 could then be considered given that the current Conditions of Practice Order was not nearing expiry. The hearing was taking place less than one year after the imposition of a three year Conditions of Practice Order, on 22 July 2013.


12. On 16 July 2014, the Order was again reviewed on the application of the Registrant. The Panel then sitting found that there was still a lack of competence such that the Conditions of Practice Order should be maintained, but with varied Conditions.


13. On 14 May 2015, the Order was again reviewed, this time on the application of the HCPC. The Panel then sitting determined that there was still a lack of competence on the part of the Registrant such that the Conditions of Practice Order should continue, but with varied Conditions.


14. On 27 November 2015, the Order was reviewed on the joint application of the Registrant and the HCPC. The Panel then sitting determined that the fitness to practise of the Registrant remained impaired and the Panel made a new Conditions of Practice Order to run for 2 years.


15. On 24 November 2017, there was a mandatory review of the Order shortly before it was due to expire. Mr Simmonds attended and gave evidence. The Panel made the following observations when finding his fitness to practise remained impaired:


“The Panel has taken into account all that the Registrant has said, in particular the steps he believes he has taken to remediate his past failings. However, the Panel takes the view that the Registrant has not fully remedied those past failings and feel that the Registrant still needs to build on the work he has carried out in that respect. Any insight the Registrant has regarding those past failings is still developing. The Panel believes the Registrant needs to have in the forefront of his mind the potential serious consequences of his past failings. There could have been serious consequences caused to members of the public. The primary purpose of this regulatory process is to protect members of the public and the Panel would have liked to have seen from the Registrant greater recognition of the degree of potential harm which he created for members of the public by his past failings.


The Panel has concluded, against the background of incomplete insight and insufficient remediation, that the Registrant’s fitness to practise remains impaired.”


16. On that occasion the Panel concluded that, “There remains a possibility that the Registrant will gain full insight into his past failings and will achieve appropriate remediation. That is most likely to be achieved by the imposition of appropriate Conditions of Practice.”


17. Those conditions were as follows:

(1) You must place yourself and remain under the supervision of a supervisor registered by the HCPC as a Biomedical Scientist working at not lower than AFC Band 6, and supply details of your supervisor to the HCPC within 1 month of obtaining employment as a Biomedical Scientist. You must attend upon that supervisor as required and follow their advice and recommendations.

(2) You must work with the supervisor to formulate a Personal Development Plan which will include satisfactory completion of the standard laboratory training programme applicable to trainees, and must address the deficiencies in following and adhering to the laboratory Standard Operating Procedures in the following areas:

A. Sample acceptance criteria;

B. Sample labelling and correct analysis;

C. Quality assurance procedures;

D. Reporting and record keeping.

(3) Within three months of securing employment for which your HCPC registration is required you must forward a copy of your Personal Development Plan to the HCPC.

(4) For the purpose of considering your progress towards achieving the aims set out in your Personal Development Plan, you must meet with your supervisor not less frequently than:

A. weekly for the first 3 months of your employment; and,

B. monthly for the following 9 months;

C. thereafter, as your supervisor requires.

(5) You must allow your supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

(6) You must arrange for your supervisor to provide a report on your progress towards achieving the aims set out in your Personal Development Plan for the purposes of the review of this Order.

(7) You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

(8) You must inform the following parties when you apply for a role as a Biomedical Scientist that your registration is subject to these conditions.

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application).

(9) You must bring to any future review hearing the following:

A. a reference in respect of your current or most recent employment which makes specific comment on your current performance in that role and which gives an opinion as to the extent to which you have demonstrated the required competences of that role.

B. a copy of the job description relevant to your current or most recent role.

C. a written piece from you setting out the transferable skills you believe you have acquired and/or demonstrated in your current or most recent employment and which are relevant to a role as a Biomedical Scientist.
D. a Continuing Professional Development log detailing all learning and development you have undertaken to maintain and/or enhance your skills and knowledge relevant to work as a Biomedical Scientist. This could include courses, seminars, or webinars attended as well as learning gleaned from books, journals, articles or similar sources.

E. A reflective piece setting out your insight into the potential impact from the shortcomings on your part identified at your final hearing in February and May 2011 on members of the public and on the Biomedical Scientist profession.

Note:

1. The supervision required by these conditions is not constant supervision.

2. The supervision does not require your workplace judgements to be approved by your supervisor save to the extent that the ordinary requirements of any laboratory in which you work demand such approval.

3. Conditions 1 – 6 above apply only when you are employed as a Biomedical Scientist.

18. Ms Dudrah, on behalf of the HCPC, submitted that, in light of the Registrant’s lack of compliance with the the Order made on 24 November 2017, the Panel should now consider whether to continue making Conditions of Practice Orders or whether the time had come to strike the Registrant off the Register. She highlighted in particular the Registrant’s lack of compliance with Condition 9, in that he had not provided any of the material referred to, namely: a reference from his current employer; a copy of his job description; a written piece setting out his transferable skills; a CPD log; or a reflective piece.


19. Ms Dudrah submitted that the Registrant was unable to demonstrate to the Panel that he had gained proper and meaningful insight into his failings or that he had in any way remedied them. She added that the Registrant had not completed the HCPC return to practice requirements and had not now practised since 2009. Ms Dudrah submitted that the Registrant had shown no insight at the time of the incidents, or at the Final Hearing, or at any of the subsequent reviews and that conditions were no longer workable because he had not shown an ability or willingness to comply with them. She added that, despite the many years in which he had had time to do so, the Registrant had not provided any evidence of remediation, he had not maintained his CPD or updated his skills and knowledge and there was, therefore, a real risk that he would repeat his behaviour if allowed to return to unrestricted practice. Ms Dudrah submitted that it followed that the Registrant remained unfit to practise both on public protection grounds and in the public interest.


20. Ms Dudrah said that in light of the time that had elapsed and the many opportunities given to the Registrant since 2011 to show insight and remedy his practice, it was not appropriate to continue conditions any further. She referred the Panel to the Indicative Sanctions Policy (“ISP”) issued by the HCPC and also to the case of Unozor v NMC, 25 February 2016, and invited the Panel to consider a strike-off.


21. The Registrant gave evidence on oath. He said the continuous Conditions of Practice Orders had effectively “frozen him out of the profession.” All he wanted, he said, was a “foot in the door” so that he had a chance to eventually practise as a Biomedical Scientist. He apologised for his previous failings, but wanted the chance to prove he could do the job. He said, when asked what his ideal result would be from today’s hearing that he would like a caution, but he recognised “that that was not going to happen.” He emphasised how well he had done in his degree and that he had therefore demonstrated that he could do the job of a Biomedical Scientist with the right training.


22. When asked by the Panel about his apparent non-compliance with Condition 9, the Registrant gave the following answers. In relation to a current reference he said that he had provided references in the past from his employer. He said he continued to work at the University of Newport, where he had worked since 2011, but had not thought to provide an up-to-date reference because he had been off work for many months. When asked why he had not provided a job description he produced one out of his bag, but could not provide any explanation for not having provided it sooner. When asked about the lack of a written piece setting out his transferrable skills he said, “I haven’t done one and that’s that.” He said he had not provided a CPD log because apart from “reading the gazette occasionally”, he had not been doing any courses or up-dating of his skills because it was so long since he had worked as a Biomedical Scientist. When asked about the lack of a reflective piece, he said again, “I haven’t done one, that’s it, sorry.”


23. The Registrant was also asked when he had last looked at his most recent Conditions of Practice and he said that he had not looked at them at all. When asked why not he said he had had so many Conditions of Practice he did not need to look at them.


24. The Registrant told the Panel how he had applied for many jobs, both as a trainee Biomedical Scientist and as a Medical Laboratory Assistant and that even though for the latter he did not need HCPC registration, it was always known that he was subject to conditions with the HCPC and subsequently he never got the job he was going for. When asked by the Panel, he said that he would often be asked about conditions or volunteer the fact of them when applying for jobs. He was still getting interviews which suggested to the Panel that it was not necessarily the existence of the conditions that was preventing him from obtaining employment since he was getting interviews even when it was known he was subject to conditions.

Decision


25. The Panel considered with care the Registrant’s oral evidence, together with the documentation he provided and the submissions of both parties. The Panel accepted the advice of the Legal Assessor and in reaching its decisions referred to the HCPTS’s Practice Note on ‘Finding Fitness to Practise is Impaired’. The Panel carried out a comprehensive review of the current order in light of the circumstances as they existed today.


26. The Panel first considered the issue of current impairment. In an undated letter to the HCPC, the Registrant said he would attend today’s review hearing. He went on to say, “Unfortunately, I have been unsuccessful in obtaining employment with your current conditions of practice. This is because in my opinion your indicative sanction policy and conditions of practice are unfit for purpose in my particular case as a graduate trainee. I have had numerous conditions of practices imposed on myself for the past 7 years which amount to a striking off or a remand as I have not been able to work. Therefore I would like to suggest to the panel that this punishment is not proportionate to the alleged incompetence. This for me has now become a dignity problem in terms of my disabilities that haven’t been considered and where [sic] referenced in the original investigation but not declared. I would also like to apologised [sic] unreservedly to the panel for the part I played during my time in Hereford county hospital [sic] and the genuine honest mistakes I made.” Mr Simmonds also made a comparison with the case of Dr Hadiza Bawa-Garba which he believed was similar to his case, stating, “There were issues with supervision as the insufficient number of qualified staff and training officer problems in Hereford. Dr Hadiza Bawa Garba also was made honest mistakes but is now allowed to work. [sic]”


27. The Registrant gave evidence to the Panel as referred to above and the Panel took all that evidence into account. The Panel considered the health issues referred to by the Registrant, but did not find them relevant to the issue of current impairment.


28. The Panel also took account of the principle set out in Abrahaem v GMC [2008] EWHC 183 (Admin) that there is, in practical terms, a persuasive burden at a review hearing for the Registrant to demonstrate that he has “fully acknowledged why past performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments.”


29. The Panel noted that at the original hearing, the Panel found the Registrant to be a credible witness who had done his best to help the Panel in so far as he was able to and concluded, “The Panel has no doubt that Mr Simmonds does have good academic skills but considers that is not sufficient to constitute a competent Biomedical scientist, who is required to demonstrate those skills in the workplace. It is clear that Mr Simmonds and the Trust had different expectations of how his training was to progress and it seems that there were failings on both sides in this regard. However, the proven facts relate to fundamental skills which a newly qualified Biomedical scientist should be able to acquire in a short period of time, if he does not already possess them. The Panel acknowledged that Mr Simmonds was able to demonstrate a degree of consistent performance in his responsibilities, however this was insufficient to meet the standards required of a competent Biomedical scientist.”


30. The original Panel went on to find a number of breaches of the HCPC Standards of Proficiency for Biomedical Scientists and stated, “His lack of attention to detail, lack of accuracy and frequent lapses of concentration were not isolated incidents.” That Panel went on to conclude that the Registrant’s fitness to practise was impaired because he was unable to demonstrate that he had remedied his failings and therefore he continued to represent a risk to the public.


31. Subsequent Panels, at the various review hearings, had continued to find the Registrant’s current fitness to practise impaired due to his lack of insight and remediation.


32. This Panel considered it most unfortunate that nine years after the failings identified by the original Panel and seven years after the first Conditions of Practice Order, these matters had not yet been resolved. It recognised the frustration felt by the Registrant and understood the hardship he continued to suffer as a result of not being able to obtain employment as a Biomedical Scientist. However, the Panel did not accept the Registrant’s observation that the conditions of practice were not fit for purpose. The Panel must always ensure that any sanction imposed is proportionate to guard against the risks it has identified. The original Panel identified that the Registrant’s lack of competence was potentially remediable and it was for that reason that a Conditions of Practice Order was made in order to give him the opportunity to obtain employment and demonstrate he could practise safely. The purpose of fitness to practise proceedings is to protect the public against the acts and omissions of those who are not fit to practise and to uphold proper standards of conduct and behaviour in order to maintain public confidence in the profession. Accordingly, until the Registrant could demonstrate that he had remedied his failings and was highly unlikely to repeat them, it was inevitable that Panels would continue to find him impaired.


33. The Registrant had provided this Panel with no evidence of remediation. In fact, quite the opposite by failing to comply with Condition 9 of the current Order. The Panel found his answers to why he had not complied to be of great concern. He gave the distinct impression that he simply could not be bothered. He even said he had not taken the time to look at the actual conditions of his latest Order. The Panel also considered the Registrant continued to lack insight. Although he apologised for his behaviour he still did not accept that he was responsible for all the matters found proved against him and instead blamed others. In the absence of such insight and remediation, the Panel considered there to be a real risk that the Registrant would repeat his behaviour in the future.


34. Accordingly, the Panel found that, in the absence of any evidence of effective insight or remediation of the failings which resulted in the original Order, the Registrant continued to be impaired on public protection grounds. The Panel was also satisfied that a fully informed member of the public would have their confidence in the profession and the regulatory process undermined if a finding of impairment were not made and the Registrant were allowed to return to unrestricted practice having failed to demonstrate that he would not repeat his failings.


35. The Panel then considered what sanction was both appropriate and proportionate in all the circumstances and in doing so considered the ISP. The Panel noted that the Registrant had now been the subject of a Conditions of Practice Order for over seven years and that he maintained this amounted to a striking-off because he had been unable to obtain any work. As already stated, the Panel did consider it most unfortunate that the Registrant had been unable to secure any work as a Biomedical Scientist, but it did not accept that the conditions amounted to a strike-off or had prevented him from obtaining any work. The conditions set by the last Panel were typical of the sort of conditions one would expect in a case of this nature. The conditions were targeted at the specific failings identified by the original Panel and also took into account the various representations made by the Registrant at the subsequent review hearings. The Registrant had been able to obtain interviews even when it was known that he was subject to conditions. The fact that he was then unsuccessful suggested it was not due to the conditions, which were known about before he was invited for interview.


36. The Panel did not consider it appropriate to take no action or to impose a Caution Order in this case, since neither would protect the public from the risks identified.


37. The Panel the considered with care whether it should extend the current Conditions of Practice Order or to make a new one with different conditions.  The Panel noted that the Registrant had been subject to conditions for many years. In answer to questions by the Panel about his lack of compliance the Registrant gave the impression that he simply could not be bothered to look at the conditions or to comply with the parts he could have, in particular Condition 9. The Panel noted that the ISP states that “conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. Therefore, conditions of practice are unlikely to be suitable in cases where the Registrant lacks insight.” The Panel could see no reason why the Registrant would comply if yet another Conditions of Practice Order were to be made.


38. The Panel then considered whether it would be appropriate to make a Suspension Order. The Panel considered such a sanction would be futile in this case. The only purpose for such a sanction would be to allow the Registrant time to reflect and subsequently demonstrate insight and/or some form of remediation to a reviewing Panel. Because the Registrant had already had since 2011 to reflect and/or remediate, the Panel could not see how anything would be achieved by a period of suspension.


39. The Panel thus went on to consider a Striking-Off Order. The ISP states that whilst such an Order is a sanction of last resort, it should be used where there is no other way to protect the public, for example, where there is a lack of insight and where the Registrant’s inability or unwillingness to resolve matters suggest that a lower sanction may not be appropriate. The Panel took into account the case of Unozor v NMC referred to above, and decided that this was a case where it was not appropriate to continuously extend Conditions of Practice Orders in the hope that the Registrant might eventually comply with its suggestions. The Registrant had not taken any steps to remedy his deficiencies in the seven years since the first Order, nor had he shown any real insight into his failings. The Panel had carefully considered all the evidence and concluded that the time had come where the only appropriate and proportionate sanction was that of a strike-off. The Panel took into account the impact of such an Order on the Registrant, but concluded that the public interest outweighed his interests in light of the extensive period he had been provided with to demonstrate insight and remediation and yet had failed to do so.

Order

ORDER: The Registrar is directed to, on the expiry of the current Conditions of Practice Order, strike the Registrant off the Register.

Notes

A Substantive Review was held in Cardiff on Thursday 18 October 2018. The Panel imposed a Striking Off order.

Hearing History

History of Hearings for Mr Ian Simmonds

Date Panel Hearing type Outcomes / Status
18/10/2018 Conduct and Competence Committee Review Hearing Struck off
24/11/2017 Conduct and Competence Committee Review Hearing Conditions of Practice
27/11/2015 Conduct and Competence Committee Review Hearing Conditions of Practice
14/05/2015 Conduct and Competence Committee Review Hearing Conditions of Practice
16/07/2014 Conduct and Competence Committee Review Hearing Conditions of Practice