Mr Richard M Anderson

Profession: Biomedical scientist

Registration Number: BS51522

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 26/03/2019 End: 17:00 27/03/2019

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

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

Whilst employed as a Biomedical Scientist at Northampton General Hospital NHS Trust, you:

  1. On or about 1 February 2017, instructed Colleague A, who was junior to you, to report overdue laboratory results as negative when you did not have the results for these tests;
  2. Your actions described in particular 1 were dishonest.
  3. Your actions described at particulars 1 and 2 constitute misconduct;
  4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters:


Union Representation
1. The Registrant told the Panel that he had expected to be accompanied at this hearing by a union representative. The Registrant said that the representative, who would have attended in a supporting capacity rather than speaking on the Registrant’s behalf, had only this morning informed the Registrant that he would not be able to come.


2. The Registrant told the Panel that he had discussed matters relevant to the hearing in detail with the representative before today. The Registrant did not request an adjournment and said that he was content to proceed now without the support. The Registrant said that the representative was available by telephone throughout the day, should he need to speak with him.


Unredacted material within the HCPC’s bundle
3. The Chair raised an issue in relation to evidence contained in the bundle. She said that one of the members of the Panel had noticed, when reading the HCPC bundle in preparation for today’s hearing, that there was reference to the outcome of the Trust’s Disciplinary Hearing in relation to the matters before the Panel today. The other two Panel members had not noticed the reference and were still unaware of it now.


4. The Presenting Officer referred the Panel to Enemuwe v NMC [2015] EWHC 2018 (Admin) and submitted that there is a distinction to be drawn between a panel knowing what a previous investigatory body has found and a panel placing reliance upon it. He submitted that, unless serious prejudice can be pointed to in this case, there is no procedural irregularity.


5. The Legal Assessor advised the Panel that while local investigations may sometimes be admissible in disciplinary hearings to assist a panel to understand the context of a case, the findings of those other proceedings should not be admitted or relied upon. Where it is inevitable that a panel becomes aware of previous findings, the panel should put those from its collective mind. It was noted that there was no reference within the bundle to the formal findings from the Trust’s Disciplinary Hearing.


6. Having taken time to consider his position in relation to this issue, the Registrant agreed that it was the outcome, rather than the findings from the Trust’s investigation, that were in the bundle. The Registrant stated that he was content to proceed.

Application to Amend the Allegation
7. At the commencement of the hearing, the Presenting Officer, on behalf of the HCPC, applied for amendments to be made to the Allegation to ensure that it more accurately reflected the HCPC’s position. The Presenting Officer also submitted that the Registrant had been notified by letter dated 16 November 2017 that the HCPC intended to apply to formally amend Particular 1 and to discontinue and offer no evidence on “misleading” in Particular 2(b).


8. The Registrant did not object to the proposed amendments. He submitted that the amendments were appropriate.


9. The Panel accepted the advice of the Legal Assessor, who advised that the Panel should have regard to the merits of the case, the fairness of proceedings and consider whether the requested amendments can be made without injustice. The Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced. It is up to the Panel whether to accept all, none or some of the amendments proposed by the HCPC.


10. The Panel considered that the Registrant had been given plenty of notice and ample opportunity to consider the proposal. In the Panel’s judgment, the proposed amendments were fair and were made on the basis of the material gathered during the HCPC’s investigation. The Panel was of the view that the amendments sought did not change the substance of the allegation, served to clarify it and would not cause injustice. Accordingly, the Panel acceded to the Presenting Officer’s application and allowed the amendments to be made. The amended Allegation is as set out above.


Proceeding in private
11. The Panel heard that matters relating to the Registrant’s private life were to be discussed as part of this hearing. The Legal Assessor informed the Registrant that he could seek permission from the Panel to have personal matters heard in private. The Registrant requested approval from the Panel to hear parts of the evidence in private. The Presenting Officer did not object to the application.


12. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 whereby matters pertaining to the health and/or private life of the Registrant, the complainant, any person giving evidence or of any Patient or Client should be heard in private. The Panel agreed the parts of the hearing, where reference was to be made to the Registrant’s private life, should be heard in private.


Documents
13. The Panel received a bundle of documents from the HCPC comprising a case summary and Exhibits running to 65 pages. The Presenting Officer also provided written Skeleton Submissions to the Panel.


14. The Registrant submitted a character reference from his then line manager, AC, dated 15 June 2018.


Admissions
15. At the outset of the hearing, the Registrant admitted factual particular 1 of the Allegation, accepting that he instructed CH to report overdue laboratory results as negative when he did not have the results for these tests.


16. The Registrant denied the allegation of dishonesty as set out at particular 2.


Background:
17. The Registrant is registered with the HCPC as a Biomedical Scientist. At the time of the matters, which are the subject of these proceedings, the Registrant was employed by Northampton General Hospital NHS Trust (the Trust) as a Senior Biomedical Scientist in the Microbiology/Pathology Department.


18. On or around 1 February 2017, the Registrant’s colleague, CH (referred to as Colleague A in the Allegation), was carrying out a comprehensive check of the overdue list in the Microbiology laboratory as part of his daily responsibility. On reviewing the list, CH found a number of overdue MRSA results, some of which dated back to 3 weeks previously. As standard procedure was to discard swabs after a week, they were unavailable to re-test. CH therefore sought advice from the Registrant, who was the Team Leader, as to how to how to proceed.


19. CH states that he was told twice by the Registrant to report the results as negative. Having followed this advice, CH later raised the incident with another colleague, who reported it to the Operational Manager. An investigating officer, CS, was appointed, who conducted a full investigation.


20. The Registrant was the subject of a disciplinary hearing with regard to an allegation that he “deliberately falsified laboratory test results” on 1 February 2017. The matter was subsequently referred to the HCPC on 19 April 2017.


Evidence
21. The HCPC called two witnesses, identified in the proceedings as CH and CS. Both witnesses confirmed and adopted their witness statements as their evidence in chief and were asked a number of supplementary questions by the Presenting Officer.


22. CH was employed by the Trust as a Band 5 Biomedical Scientist in the Microbiology Department. CH’s witness statement exhibited a statement sent by email to the Manager of Microbiology on 3 February 2017, together with a signed copy of the notes of an investigatory interview with CS on 28 February 2017. CH’s witness statement also exhibited relevant Standard Operating Procedures (SOPs) of the Trust. CH told the Panel that the Registrant was “swamped” at work and that he did not think that it was a fair situation for the Registrant to be in; he acknowledged that the Registrant was under a great deal of pressure at work.


23. CS was employed by the Trust as a Health Records Manager in the Medical Records Department. He conducted the investigation into the allegation made against the Registrant. CS confirmed his assessment that the Registrant was working in a very pressurised environment and that there should have been at least two Band 7s on the floor, one for each area, on the day in question. The Registrant had “potentially” been doing not just his own job on that day, but the job of another Band 7 as well as a manager. He confirmed that, as far as he was aware, this was the only incident that arose during the Registrant’s employment at the Trust and that the Registrant was co-operative throughout the Trust’s investigation.


24. The Registrant represented himself at the hearing. He gave evidence to the Panel and was cross-examined by the Presenting Officer. He also answered questions from the Panel.


25. In his oral evidence to the Panel, the Registrant detailed his professional career. He qualified as a Biomedical Scientist some 14 years ago. On 1 February 2017, the Registrant was the only senior member of staff on duty and was required to do both bench-work and deal with managerial issues. He said that he was focusing on all the tasks that he had ahead of him to complete, rather than on what he was being asked by CH. He said that he deeply regrets not fully focusing on what he was being asked by his colleague on that day and that he regrets not asking appropriate questions of CH at the time – “I should have asked exactly what we knew or didn’t know.”


26. The Registrant further stated that it was out of character for him to make the decision that he did on that day, that it was a “massive mistake”, with “no malice, no intent to mislead or cause harm.” He said, “I can’t say what I thought I was doing; I was muddled.” He acknowledged, however, that he had experience of dealing with overdue test results. The Registrant also spoke of a number of personal stressors. He said that a combination of work and personal stress clouded his judgment on that day and played on his mind. The Registrant said that he feels deeply saddened by the incident, very ashamed, finds it difficult to comprehend and knows that he will not make a similar decision again. He said that has a deep respect for the HCPC standards and the Standards of his own profession and asked the Panel to bear in mind his 13 years of exemplary service.


Legal Advice on facts
27. The Panel received and accepted the following advice from the Legal Assessor.


28. The burden of proof was upon the HCPC which brought the allegations. It was not for the Registrant to prove his innocence.


29. The standard of proof in HCPC proceedings is the civil standard, on the balance of probabilities, meaning that before finding a fact proved the Panel must be satisfied it is more likely than not that it occurred.


30. Dishonesty was alleged in respect of the factual particular in this case. In relation to the allegation of dishonesty, the Panel was reminded of the test in respect of dishonesty set out in the case of Ivey (Appellant) v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent) [2017] UKSC 67, where Lord Hughes, giving judgment, stated as follows:


“…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.”


31. Dishonesty was alleged in Particular 2 in relation to the factual particular. The Registrant’s credibility was therefore in issue and the Panel should take into account his previous good character.


Decision on Facts:
32. The Panel considered all the evidence in this case, together with the admission made by the Registrant at the start of proceedings in relation to particular 1 of the Allegation. It heard the submissions made by the Presenting Officer and the Registrant. The Panel had in mind that, although the Registrant had admitted factual particular 1, the burden of proof remained on the HCPC.


33. The Panel first considered the overall credibility and reliability of the witnesses it heard from, including the Registrant.


Witness CH
34. The Panel found CH to be a credible witness who provided consistent evidence. CH was clear in his mind about the working systems in place and the Panel formed the view that he was technically correct in his account of his area of practice and was able to provide detailed explanation of the procedures around overdue MRSA results. The Panel considered that he provided a fair account of his professional relationship with the Registrant, to the extent of being supportive of him.


Witness CS
35. The Panel found CS to be a credible and straightforward witness who did his best to assist the Panel during his evidence. The Panel found no inconsistencies in his evidence. He was clear around the parameters of what he had been asked to investigate at the Trust. The Panel considered that CS was fair to the Registrant in his evidence and had no reason to mislead the Panel.


The Registrant
36. When considering the Registrant’s evidence, the Panel acknowledged that he was extremely nervous. The Panel found him to be candid and genuine. He answered all questions put to him and the Panel found no inconsistencies in his evidence. The Panel was of the view that the evidence he gave was scientifically sound. The Registrant was very clearly remorseful and ashamed.


37. The Panel considered each of the Particulars and made the following findings:


Particular 1 – Proved
On or about 1 February 2017, [you] instructed Colleague A, who was junior to you, to report overdue laboratory results as negative when you did not have the results for these tests;


38. The Registrant said that he was informed by CH that the swabs relating to these overdue results had been looked for but had been discarded. The Panel took into account the evidence of CH that the Registrant said that the samples were probably negative because, if they had been positive, they would have been followed up. CH said that the Registrant “therefore advised that I report them as ‘negative.’…I checked again with [the Registrant] and he again said to report the samples as negative.”


39. The Registrant admitted this particular and did not challenge any of the contents of the witness statements from CH and CS before the Panel.


40. The Panel was satisfied that the HCPC had established to the required standard that the Registrant did instruct CH, a Band 5 Biomedical Scientist at the relevant time, to report overdue laboratory tests as negative when the Registrant did not have the results for these tests.


Particular 2 – Proved
Your actions described in particular 1 were dishonest


41. The Panel considered whether the Registrant’s conduct in respect of the factual particular it had found proved was dishonest, which the Registrant denied. The Panel considered the test in the Ivey case (see above). The Panel was also mindful that an allegation of dishonesty is serious and that it should look for cogent evidence before being satisfied on the balance of probabilities.


42. The Panel bore in mind that the Registrant was very well-qualified in his profession and considered that he had a clear understanding of his job and role, knew what was expected of him and knew the purpose of dealing with overdue results. Both in the investigation report and in oral evidence to the Panel, the Registrant said that he would have read the Trust SOP and related policies. The Panel was of the view that the Registrant knew the possible consequences and risks of reporting the results as negative but that he considered that the risks were low.


43. The Panel determined that the Registrant was aware of what he was doing when he told CH, twice, to report the results as being negative, when he knew that they were not negative. The Panel did not accept that this was an error or even an error of judgement on the Registrant’s part. Further, the Panel did not accept his explanation for his instruction to report the results as negative as being based on a prior experience of overdue MRSA results. The Registrant stated that, on the previous occasion, negative results that he knew had been reported had come up on the overdue list with no result. The Panel considered that these were two very different scenarios and, as such, did not accept the Registrant’s explanations that he made an assumption that these would be negative too: “I put it down to being the same thing” and, “Having had that experience, I did the same.” For example, on the previous occasion, the Registrant said that he was able to go back through the discard bin and retrieve all the plates to verify that they were all negative.


44. The Panel acknowledged the Registrant’s deep regret for his actions. In light of the Panel’s conclusions as to the Registrant’s actual state of mind as to knowledge or belief as to facts in particular 2, however, the Panel determined that the Registrant’s actions were dishonest, applying the objective standards of ordinary decent people.


45. Therefore, Particular 2 is proved on the balance of probabilities.


Decision on Grounds:
46. Having determined the facts and found the factual particulars proved, the Panel was required to judge whether the facts found proved amounted to the statutory ground of misconduct as advanced by the HCPC. Whist this would usually be considered following submissions on grounds and impairment, in this case the Panel determined grounds prior to receiving submissions on impairment.


47. In reaching its conclusion, the Panel considered all the evidence and information before it, together with the submissions of the Presenting Officer. The Registrant did not make any submissions regarding misconduct, except to state that he was very remorseful and ashamed of his conduct on that one occasion.


48. The Presenting Officer made submissions regarding the issue of misconduct. He referred to the relevant HCPC Standards of Proficiency for Biomedical Scientists (2014) as being paragraphs 1, 2, 8, 9, 10, 11, 12 and 15. He also referred to the HCPC Standards of Conduct, Performance and Ethics (2016), particularly paragraphs 1, 2 and 9.


49. The Panel had in mind the HCPC’s practice direction and accepted the advice of the Legal Assessor. The Panel noted that there is no burden or standard of proof at this stage and exercised its own professional judgement, keeping at the forefront of its consideration the overarching objectives of the HCPC.


50. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It was also aware that the statutory ground of misconduct is qualified by the word “serious”. It is not just any professional misconduct that will qualify.


51. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved.


52. The Panel considered that the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:


• 2 - Communicate appropriately and effectively – You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users
• 6 - Manage risk - You must take all reasonable steps to reduce the risk of harm to service users…as far as possible; You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user… at unacceptable risk.
• 9 - Be honest and trustworthy…make sure that your conduct justifies the public’s trust and confidence in you and your profession
• 10 – Keep accurate records - You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.


53. The Panel considered that the Registrant had breached the following paragraphs of the HCPC’s “Standards of proficiency for Biomedical Scientists” (2014 edition):


• 1 - be able to practise safely and effectively within their scope of practice;
• 2 - be able to practise within the legal and ethical boundaries of their profession
2.1 - understand the need to act in the best interests of service users at all times
2.2 - understand what is required of them by the Health and Care Professions Council
2.8 - be able to exercise a professional duty of care
• 3 – be able to maintain fitness to practise
3.1 - understand the need to maintain high standards of personal and professional conduct
• 10 - be able to maintain records appropriately
10.1 - be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines
10.3 - be able to recognise, communicate and understand the risks and possible serious consequences of errors and omissions in both requests
• 12 - Be able to assure the quality of their practice


54. The Panel next considered whether the facts proved could amount to misconduct. The Panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards would be sufficiently serious that it could properly be described as misconduct. However, the Panel was in no doubt that both Particulars 1 and 2 found proved in this case amounted to the statutory ground of misconduct.


55. Firstly, the Panel considered that the Registrant's actions, albeit on a single shift, fell significantly short of the conduct that would be expected of a Biomedical Scientist and put patients at risk of harm. The Panel accepted the evidence of CH that, “if a patient was MRSA positive and we had sent out a negative report that could have consequences for that patient. The screenings are done as standard protocol to prevent the spread of infection and the impact would depend on the particular patient. In any event, our job is to make sure that the patient gets the right treatment so it is important for the patient and also our profession, that the right results are recorded.”


56. Furthermore, at the time relevant to the matter alleged and found proved, he was the Senior Biomedical Scientist and Team Leader. His instruction to CH to report overdue laboratory results as negative, when he did not have the results for these tests, was more serious since it was incumbent on him to show leadership and be an example of good practice.


57. The Panel considered that, on the facts found proved, the Registrant had breached a fundamental tenet of the profession, namely that Biomedical Scientists are expected to act with honesty and integrity at all times. The Panel found that the Registrant’s conduct demonstrated behaviour that lacked professional integrity and that fellow registrants would consider it to be nothing short of deplorable. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.

Decision on Impairment:
58. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct.


59. The Registrant chose not to give additional evidence at this stage of the hearing but made representations to the Panel. He reiterated that he was deeply sorry for his actions on this one occasion and assured the Panel that nothing similar would happen again in the future. He reiterated that he held his profession in the highest esteem and that he believed his actions on 1 February 2017 were purely down to the challenges he was facing in his personal and work life at that time. He asked the Panel to remember that he remained employed at the Trust for a further 13 months as a Biomedical Scientist, following the disciplinary finding in relation to these matters, and that no further issues arose with his practice.


60. The Panel heard the submissions of both parties and accepted the advice of the Legal Assessor. The Legal Assessor drew the Panel’s attention to the approach set out in the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin), and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.


61. The Legal Assessor also drew the Panel’s attention to the case of GMC v Chaudhary [2017] EWHC 2561 which highlights that a finding of impairment does not necessarily flow from a finding of dishonesty, with a tribunal being fully entitled to look at the dishonesty in context. She advised the Panel that, in looking at the dishonesty in context, it must give proper weight, and demonstrably so, to all three elements of the HCPC’s overarching objective.


62. The Panel considered the question of insight and remorse and considered whether the conduct is capable of remedy, whether it has been remedied and whether it is likely to be repeated in the future. It took account of the public interest, that is to say the need to protect patients, the maintenance of public confidence in the profession and its regulation and the upholding and declaring of proper standards.


63. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman Inquiry by asking itself the following questions:
“Do our findings of fact in respect of the Registrant’s misconduct show that his fitness to practise is impaired in the sense that he:


a) has in the past acted and/or is liable in the future to act so as to put patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Biomedical Scientist profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or
d) has in the past and/or is liable in the future to act dishonestly?”


64. The Panel determined that the Registrant had, in the past, acted so as to put patients at unwarranted risk of harm; brought the Biomedical Scientist profession into disrepute; breached a fundamental tenet of integrity and trustworthiness; and that he had acted dishonestly. In considering whether he would be liable in the future to act so as to put patients at warranted risk of harm, to bring the profession into disrepute or to breach one of the fundamental tenets of the profession, the Panel was of the view that the Registrant would not. In relation to the fourth limb and the question of whether the Registrant would be liable in the future to act dishonestly, the Panel had careful regard to matters of insight, remorse and remediation and the risk of repetition. The Panel considered that the Registrant had reflected fully on his actions and demonstrated a high level of insight and indeed remorse. The Panel was aware that it is generally difficult to demonstrate remediation of dishonesty, which is an attitudinal failing. However, the Panel was also aware that there is a spectrum of dishonest behaviour. This was a single failing that occurred on a single shift. It also bore in mind that the Registrant continued to work in the same Department at the Trust, as a Biomedical Scientist, for a further 13 months, with seemingly no further issues raised. The Panel took into account the positive character reference from his then line manager, who was involved in the Trust’s disciplinary investigation and who, since these matters occurred, described him as a “decent, hardworking and trustworthy person. I believe the behaviour he displayed at that time was unusual for him and precipitated by a stressful situation.” In these circumstances, the Panel considered the risk of repetition to be low. It has therefore concluded that in relation to the personal component, the Registrant’s fitness to practise is not currently impaired.


65. The Panel bore in mind that the overarching objectives of the HCPC are to protect, promote and maintain the health, safety and well-being of the public. It also exists to uphold and protect the wider public interest, which includes promoting and maintaining public confidence in the professions of those it regulates and upholding the proper professional standards for members of those professions. With regard to the public component, the Panel determined that, in this case, a finding of impairment of public interest grounds is required. Biomedical Scientists occupy a position of privilege and trust and are expected at all times to be professional and honest. Patients must be able to trust them and, to justify that trust, they must be honest and open and act with integrity. The Panel considered that, in light of the nature of the misconduct in this case and bearing in mind that the Registrant was in a position of trust as Team Leader at the time of these matters found proved, a member of the public would be concerned if the Registrant’s fitness to practise was found not to be impaired on the grounds of public interest.


66. Having regard to all the above, the Panel determined that the Registrant’s fitness to practise is currently impaired.


Decision on Sanction:
67. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It took into account the submissions of both parties.


68. The Panel has taken into account HCPTS’ Indicative Sanctions Policy. It has accepted the advice of the Legal Assessor who advised the Panel that it should bear in mind that its over-arching duty is:


(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the professions regulated by the HCPC;
(c) to promote and maintain proper professional standards and conduct for members of those professions.


69. The Panel was aware that the public interest includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.


70. The Panel had regard to all the evidence presented, and to the HCPC’s Indicative Sanctions Policy (ISP). The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect and bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.


71. The Panel was aware that any sanction it imposes must be the least restrictive sanction that, in this case, is sufficient to protect the public interest. It should take into consideration the aggravating and mitigating factors in the case. The Panel also reminded itself that it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest.


72. The panel considered the aggravating factors in this case to be:
• The Registrant’s misconduct put patients at potential risk of harm;
• He had 14 years’ prior experience as a Biomedical Scientist;
• The Registrant breached his position of trust, both in relation to patients and his colleagues, by instructing somebody more junior than himself to behave inappropriately.


73. The Panel considered the following to be mitigating features in this case:
• The failing in this case was isolated, on a single shift, was not pre-meditated, not for personal gain and should be considered in the context of the Registrant’s lengthy and apparently unblemished professional career of some 13 years;
• The Panel acknowledged specific mitigating circumstances in that the failing occurred at an acutely difficult time when the Registrant was dealing with personal and professional stress. The incident occurred when the Registrant was performing the work of 3 people.
• The Registrant has demonstrated a high level of insight and sincere remorse into his misconduct and its possible consequences to patients;
• The Registrant is of previous good character;
• He has cooperated fully throughout the Trust’s investigation and throughout his HCPC proceedings;
• The Registrant has attended this hearing and put himself through cross-examination.


74. The Panel first considered imposing no sanction but was mindful that this is an exceptional outcome and concluded this would be inappropriate and insufficient to uphold the public interest in the particular circumstances of this case.


75. The Panel noted that the Registrant had left the employment of the Trust and, as such, mediation was also an inappropriate sanction in this matter.


76. The Panel then considered a Caution Order. The ISP identifies that a Caution Order may be an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature; there is a low risk of recurrence; meaningful practice restrictions cannot be imposed; the conduct is out of character; and suspension from practice would be disproportionate.


77. The Panel bore in mind that a Caution Order would not restrict the Registrant’s right to practise. Whilst this matter is not relatively minor in nature, the Panel was satisfied that it was conduct that was out of character for the Registrant. The Panel was mindful of its finding that the Registrant has demonstrated insight and has demonstrated that he is unlikely to repeat his misconduct. The Registrant has been held to account, and proper standards of practice and behaviour have been declared by the finding of misconduct and current impairment on public interest grounds alone. The Panel recognised that the HCPC proceedings have had an impact on the Registrant and noted that he has expressed his deep remorse and regret. The Panel was of the view that the effect of the Caution Order would be a salutary reminder to the Registrant of the need to act with honesty and integrity and would reduce further what it considered to already be a low risk of any future repetition. Also a Caution Order would put the Registrant on notice that any further misconduct would likely lead to a higher sanction.


78. The Panel determined that, in this case, the public interest could be met with the imposition of a Caution Order as a sanction. The Panel considered that a member of the public who was fully informed of the above considerations and the particular circumstances of this case, would not be concerned if a Caution Order was imposed in these circumstances. A Caution Order is not an insignificant sanction. It will appear on the Registrant’s online register entry for the period specified. A Caution Order will appear with a link to the Panel’s decision for any prospective employer to access, and could be taken into account if any further allegation is made against the Registrant. Moreover, it would highlight to a future employer that the Registrant had fallen short previously. It would, in addition, send a message to other registrants in a similar position of the importance of following correct processes. It would satisfy the public’s need for these failings to be marked with a proportionate sanction.


79. The panel next considered the appropriate length of time for the caution order. A caution order can be between one year and five years. As set out in the ISP, the Panel considered one year as the starting point. Having carefully considered the nature of the misconduct and the aggravating and mitigating factors, the Panel decided that a one year Caution Order would not be sufficient. The Panel decided that a three year caution order was appropriate and proportionate, given the need for public confidence to be upheld and a deterrent effect on the profession at large.


80. In reaching this decision, the Panel has reviewed all available options including Conditions of Practice, Suspension and Strike off. The Panel was satisfied that no meaningful conditions could be formulated because there were no identifiable areas of the Registrant’s practice in need of remediation. As such, the Panel determined that a Conditions of Practice Order was not appropriate in this case. Furthermore, a Suspension Order would be disproportionate given the findings and mitigating factors and contrary to the public interest, which includes the retention of a registrant who is able to make a valuable contribution to the profession and to patients.


81. The Panel therefore decided that the appropriate and proportionate outcome was a Caution Order for three years.

 

Order

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

Notes

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Hearing History

History of Hearings for Mr Richard M Anderson

Date Panel Hearing type Outcomes / Status
26/03/2019 Conduct and Competence Committee Final Hearing Caution
12/12/2018 Conduct and Competence Committee Final Hearing Adjourned