Mr Christopher R Manning

Profession: Biomedical scientist

Registration Number: BS24056

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 19/11/2019 End: 17:00 20/11/2019

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

During your employment as a Biomedical Scientist at King George’s Hospital (“the
Hospital”) you:

1. On one or more occasions between around January 2017 and 13 November 2017, exited
the visitors ‘pay on foot’ car park at the Hospital (“the Car Park”) in your car without
making the required payment;

2. Your actions at particular 1 were dishonest.

3. Your actions at particulars 1 and 2 constitute misconduct.

By reason of your misconduct, your fitness to practise as a Biomedical Scientist 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 6 September 2018 by first class post, to the address shown for the Registrant on the HCPC register. 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 Conduct and Competence Committee Rules 2003 (as amended).


Proceeding in Absence:


2. Ms Luscombe made an application for the Panel to proceed in the Registrant’s absence. 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”.

3. The Panel determined that it was fair, reasonable and in the public interest to proceed in the Registrant’s absence for the following reasons:

a) The Panel noted that the Registrant’s last communication with the HCPC was via email on 14 June 2018. In that email the Registrant stated,

‘I have no intention of returning to work as a Biomedical scientist as I am near retirement age. I will ask for my name to be removed from the register, I understand that your investigation will still need to be carried out.’

The Registrant referred to a health matter in his email and provided the HCPC with his telephone number in case the HCPC required any further information. The Panel was provided with a letter from the HCPC to the Registrant, dated 2 August 2018, in which he was invited to provide further information with regard to his health. There was no response to that letter. There was also no response to the further letters that were sent to the Registrant including the hearing bundle which was sent to the Registrant on 1 October 2019. The Panel was informed that the hearing bundle was returned by the postal service on 22 October 2019, marked ‘Not called for.’ In these circumstances, the Panel was satisfied that it was reasonable to conclude that the Registrant’s non-attendance was voluntary and therefore a deliberate waiver of his right to attend and his right to participate in these proceedings.

b) There has been no application to adjourn and no indication from the Registrant that he would be willing to attend on an alternative date and, therefore, re-listing this hearing would serve no useful purpose.

c) The Panel noted that the HCPC had arranged for two witnesses to give evidence and that the relevant events date back to January – November 2017. The Panel concluded that, in the absence of any good reason to re-schedule the hearing, the witnesses should not be inconvenienced by an unnecessary delay and should give evidence whilst the events remain reasonably fresh in their minds.

d) The Panel recognised that there may be a disadvantage to the Registrant in not being able to make oral submissions with regard to the Allegation. However, the Panel was satisfied that the Registrant had been given the opportunity to participate and has chosen not to take up that opportunity. In these circumstances, his interests are outweighed by the strong public interest in ensuring that the substantive hearing proceeds expeditiously.

Background:


4. The Registrant was employed by the Barking, Havering and Redbridge University Hospitals NHS Trust (‘the hospital’) as a Biomedical Scientist. He worked in haematology at the hospital between 6 November 2012 and 23 January 2018.

5. Concerns came to light between 6 November 2017 and 13 November 2017 when the Registrant was observed by security exiting the hospital car park without paying. The Registrant achieved this by ‘tailgating’ other cars that had paid to park. ‘Tailgating’ means driving very closely behind the car in front. The tailgating was captured by CCTV.

6. An investigation was subsequently conducted by KT on behalf of the hospital which led to an internal disciplinary hearing.

Assessment of Witnesses:


Witness KT – Investigating Officer


7. Witness KT is a Biomedical Scientist. In November 2017, she was appointed as the Investigating Officer by GT, Head Biomedical Scientist, to investigate the concerns regarding the Registrant’s conduct and behaviour. At that time, she was an Immunohistochemistry Section Lead at the hospital. She did not know the Registrant at that time and had not worked with him. Her role was to establish the circumstances surrounding the allegations, consider whether there was any evidence to substantiate the allegations and present her findings at a disciplinary hearing. As part of her investigation Witness KT read a witness statement that had been prepared by the security officer Witness LW, reviewed the CCTV and interviewed the Registrant.


8. During her oral evidence Witness KT informed the Panel that she had not conducted an investigation before and that she had not received any training. The Panel noted that the lack of training was in breach of the hospital’s Disciplinary Policy which states,


‘Investigating Officers must have an appropriate level of professional knowledge and be trained to undertake investigations.’


A further concern was that Witness KT confirmed during her oral evidence that she is married to GT. Although they were not married at the time of the investigation, they were in a relationship and GT was a member of the disciplinary panel that considered the allegation based on the findings of Witness KT’s investigation. Witness KT confirmed that she presented her findings to the Panel but did not declare a conflict of interest.


9. Although the Panel had no reason to doubt Witness KT’s integrity it was concerned that the hospital’s internal process had been undermined by the failure to follow the policy and then adhere to basic principles of fairness. In light of these circumstances the Panel proceeded with caution in considering the evidence of Witness KT.


Witness LW – Security Supervisor


10. Witness LW is a security supervisor at the hospital. She does not know the Registrant. She explained the parking arrangements at the hospital. She outlined the observations that she had made with regard to a particular vehicle which was subsequently linked to the Registrant.


11. The Panel found Witness LW to be a credible and reliable witness. The Panel had no reason to doubt that she was doing her best to be of assistance and answered the questions that were asked to the best of her knowledge and belief.

Panel’s Approach:


12. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything, and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.


13. In reaching its decision the Panel took into account the oral evidence of the Witness KT and Witness LW as well as the documentary and CCTV evidence.


14. The Panel accepted the advice from the Legal Assessor. The Panel noted that following the Supreme Court decision in Ivey v Genting Casinos [2017] UKSC 67 the test for dishonesty is an objective test only. The Panel first had to determine the Registrant’s actual knowledge or belief and then determine whether his act or omission was, on the balance of probabilities, dishonest by the ordinary standards of reasonable and honest people.

Decision on Facts


Particular 1 – Found Proved

On one or more occasions between around January 2017 and 13 November 2017, exited the visitors ‘pay on foot’ car park at the Hospital (“the Car Park”) in your car without making the required payment;

15. Witness KT explained in her witness statement that there is a ‘pay on foot’ visitors’ car park at the hospital. She stated that members of staff were permitted to park in the visitor’s car park if they did not have a staff permit. The other alternative was to park on the street. Witness KT stated that in order to park in the visitors’ car park, drivers had to collect a ticket from the ticket machine as they entered. When the driver is ready to exit, before returning to their car, they need to place the ticket into the payment machine, pay the required charge and then use the ticket to exit the car park. Witness KT informed the Panel that she believed the cost to be approximately £12 a day. Witness KT stated that having reviewed the CCTV she was able to confirm that on 29 occasions between 29 September 2017 and 13 November 2017 the Registrant had tailgated another driver exiting the car park. Witness KT stated in her witness statement that, when she interviewed the Registrant, he admitted that he had tailgated other cars to exit the car park. He stated that he could not recall when he had started exiting without paying, but he stated that paying £12 a day was unsustainable. When he was asked why he had not paid for a staff permit he stated that he had applied when he initially started working at the hospital, but his application had been turned down. He acknowledged that he should have renewed his application but for three and a half years he parked in the streets around the hospital. He subsequently started parking in the car park and tailgated drivers when exiting the car park. During the interview he also mentioned a health matter and concern about arriving late for work.

16. Witness LW informed the Panel, in her witness statement, that on 8 November 2017 she observed a silver BMW tailgate another car whilst exiting the car park. She stated that the driver of the silver BMW did not pay for parking. The following day she went to the barrier to stop the car and to speak to the driver. However, she stated that the driver of the silver BMW drove straight past. Witness LW reported the matter to a colleague and was subsequently given permission to review the CCTV. Having viewed the footage she was able to ascertain that the silver BMW driver exited the car park without paying on a number of occasions. The matter was referred to the hospital.

17. The Panel was provided with a schedule which listed 21 CCTV video clips which had been downloaded. The Panel viewed 5 of these images. The footage showed a light-coloured vehicle driving very closely behind another car and then exiting the car park before the barrier came down, without making any attempt to place a ticket in the ticket machine. The Panel accepted the evidence of Witness KT and Witness LW and accepted that the images that had been viewed were a representative sample. The Panel was also satisfied that the vehicle in the CCTV images had been driven on the relevant occasions by the Registrant.

18. The Panel noted the Registrant’s admission during the hospital’s internal investigation and concluded that on more than one occasion he had exited the car park at the hospital without paying by driving very closely behind a driver that had paid.

19. Accordingly, Particular 1 was found proved.

Particular 2 – Found Proved

Your actions at particular 1 were dishonest.


20. The Panel, having found particulars 1 proved, went on to consider the issue of dishonesty.


21. The Panel was satisfied that the Registrant was aware that parking in the hospital car park was not free. He knew that having obtained a ticket on entering the car park he was required to place the ticket into the payment machine when he was ready to leave. He also knew that by placing the ticket in the payment machine the amount due would be calculated and once paid he could use the ticket to exit the car park. The Panel was satisfied, based on the admission the Registrant made and the CCTV evidence, that the Registrant did not place the ticket in the ticket machine because he wanted to avoid the £12 a day parking fee and it was for this reason that he tailgated other drivers in order to exit the car park.

22. The Panel noted that the Registrant’s behaviour was not a one-off incident; it persisted for a significant period of time. The Panel noted that on one occasion the Registrant waited for another car to head to the exit and followed closely behind it in order to leave the car park. The Panel concluded that in these circumstances the Registrant’s actions could not be anything other than conscious and deliberate. The Registrant was motivated by a desire to avoid parking charges and the Panel was satisfied that honest and reasonable members of the public would consider the Registrant’s actions to be dishonest.
23. Accordingly, Particular 2 was found proved.

Decision on Grounds:


24. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:

“Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a … practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”


25. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and was satisfied that the Registrant’s conduct breached the following standards:

9 Be honest and trustworthy


9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession


26. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Panel was satisfied that the Registrant’s conduct and behaviour fell far below the standards expected of a registered practitioner. The Registrant deprived the hospital car park operators of parking fees, to which they were entitled, for personal gain. He repeatedly and persistently avoided paying for parking at his place of work. The Registrant’s behaviour cannot be described as a momentary failure or a temporary lapse of judgement. He had ample opportunity to reflect on his behaviour and stop his dishonest behaviour but chose not to do so.


27. The Registrant’s conduct had the potential to adversely affect colleagues within his team, the wider profession and the reputation of the hospital. Trust and confidence is extremely important; the Registrant’s employer was entitled to expect him to act with honesty and integrity at all times.


28. The Panel was satisfied that the Registrant’s conscious and deliberate acts of dishonesty amount to serious misconduct as described in the Roylance case.

Decision on Impairment:


Panel’s Approach


29. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPTS Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

30. In determining current impairment the Panel had regard to the following aspects of the public interest:

• The ‘personal’ component: the current behaviour etc. of the individual registrant; and

• The ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

Panel Decision


31. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.


32. The Registrant demonstrated a persistent lack of judgment and chose to put his own interests above his professional duty to uphold the highest standards of personal conduct.


33. There has been no engagement from the Registrant during the hearing. As a consequence there was no evidence before the Panel that he fully appreciates the gravity of his conduct and behaviour and has reflected on the impact of his behaviour on his employers who had a legitimate expectation that the Registrant would act with honesty and integrity. There is also no explanation as to how he would behave differently in the future and no assurance that his dishonest behaviour is firmly in the past and will not be repeated. The Panel was particularly concerned that the Registrant’s pattern of behaviour continued for an extended period of time and suggests a fundamental failure to understand and take seriously his professional obligation to be trustworthy at all times.


34. The Panel recognises that demonstrating remediation in a case involving dishonesty is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct. The Panel noted that the Registrant’s dishonest conduct relates to a discrete set of circumstances, which may have the potential to be remedied, provided that there is evidence of sincere and meaningful reflection that demonstrates that the dishonesty is not a deep-seated attitudinal trait. However, the Registrant has provided no information that would assist the Panel in this regard. His dishonest conduct demonstrates a conscious and deliberate decision to exploit a situation for financial gain. The Panel took the view that in the absence of any insight and any steps taken towards remediation there is a real risk of repetition.


35. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.


36. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.


37. Members of the public would be extremely concerned to learn that a registered healthcare professional had persistently acted dishonestly. The Registrant’s conduct has brought the profession into disrepute, undermines a fundamental tenet of the profession and demonstrates that his integrity cannot be relied upon. As a consequence the Panel concludes that public confidence would be significantly undermined if a finding of fitness to practise was not made, given the nature and seriousness of the Registrant’s conduct.


38. The Panel concludes that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on sanction:


Submissions


39. Ms Luscombe, on behalf of the HCPC, referred the Panel to the Sanctions Policy and reminded the Panel that its primary function is to protect the public and the wider public interest. Although Ms Luscombe made no positive submission with regard to the sanction that should be imposed, she indicated that a Conditions of Practice Order is unlikely to be appropriate and that the realistic options are a Caution Order at one end of the spectrum, to a Striking Off Order at the other. She confirmed that the Registrant has not previously been subject to an adverse fitness to practise finding.

Panel’s Approach


40. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

41. The Panel had regard to its findings in relation to misconduct and impaired fitness to practise. The Panel also took into account the Sanctions Policy and the submissions made by Ms Luscombe.

Panel’s Decision:

42. In determining the appropriate sanction, if any, the Panel considered and balanced the mitigating and aggravating factors.

43. The Panel determined that the following aggravating factors apply to the Registrant:

• The Registrant has demonstrated no insight or remorse, and there is no evidence that he apologised for his actions during the internal disciplinary process;

• The Registrant’s dishonesty demonstrates a pattern of behaviour;

• The Registrant’s dishonest behaviour persisted for a significant period of time.

44. The Panel noted that during his interview with Witness KT the Registrant stated that he has a history of health matters. The Panel accepted that the Registrant experienced the difficulties he described. However, the Panel had not been provided with any evidence that there was any link between the Registrant’s health and his deliberate and persistent dishonesty. In these circumstances, the Panel concluded that the Registrant’s health did not amount to mitigating circumstances. The Panel determined that the only mitigating factors are as follows:

• The Registrant made early admissions. Although the evidence against him was compelling the Panel noted that the investigation process may have become more protracted if it had been necessary to prove that the Registrant was the driver of the silver BMW.

• The Registrant is of previous good character and has no adverse fitness to practise findings recorded against him.

No Action
45. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct and in the absence of exceptional circumstances, to take no action on his registration would be wholly inappropriate. Furthermore, it would be insufficient to maintain public confidence and uphold the reputation of the profession.


Caution Order
46. The Panel went on to consider a Caution Order. The Panel noted paragraph 101 of the Sanctions Policy which states:


“A caution order is likely to be an appropriate sanction for cases in which:


• the issue is isolated, limited, or relatively minor in nature;
• there is a low risk of repetition;
• the registrant has shown good insight; and
• the registrant has undertaken appropriate remediation. caution order is an appropriate sanction for cases, where the lapse is isolated,


47. The Registrant’s dishonest evasion of parking charges cannot be characterised as an isolated incident or ‘out of character’ as it persisted for almost one year. He demonstrated a pattern of behaviour which only came to an end when it was brought to the attention of the hospital. In any event, in view of the Panel’s findings that the Registrant has demonstrated no insight into his misconduct and whilst the risk of repetition remains, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.


Conditions of Practice Order
48. The Panel went on to consider a Conditions of Practice Order. The Panel bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable.

49. The Panel concluded that dishonestly evading parking charges for financial gain is not amenable to conditions, as the basis for this type of misconduct, is an attitudinal failing. The Panel was unable to formulate conditions which would be workable, measurable or proportionate. Furthermore, conditions would not adequately address the serious nature of the misconduct and so would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.


Suspension Order
50. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Biomedical Scientist. However, the Panel noted that paragraph 41 of the Sanctions Policy states that a Suspension Order may be appropriate in the following circumstances:

• the concerns represent a serious breach of the Standards of conduct, performance and ethics;

• the registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.


51. The Registrant has demonstrated no insight into his dishonest behaviour and has not taken the opportunity to persuade the Panel that meaningful lessons have been learnt. Furthermore, there is no evidence that the Registrant is either willing or able to resolve the underlying attitudinal failures which culminated in his dishonest conduct. In these circumstances a Suspension Order would not be sufficient to maintain public trust in the profession and the regulatory process and would not have a deterrent effect on other registrants.


52. Having determined that a Suspension Order does not meet the wider public interest the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for those category of cases where there is no other means of protecting the wider public interest. The Panel decided that the Registrant’s case falls into this category because of the nature and gravity of his dishonest conduct, his persistent lack of insight and the risk of repetition. The Panel was also satisfied that any lesser sanction would undermine public confidence. In reaching this conclusion the Panel balanced the wider public interest against the Registrant’s interests. Although in June 2018, the Registrant indicated that he was close to retirement, the Panel took into account the consequential personal and professional impact these proceedings may have upon him but concluded that these considerations were significantly outweighed by the Panel’s duty to give priority to the wider public interest.

53. With regard to the Registrant’s non-engagement with the regulatory process the Panel noted the judgment in NMC v Parkinson [2010] EWHC 1898:

“A [practitioner] who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct [A Striking Off Order].”
54. In this case the Registrant has disengaged from the regulatory process at an early stage and has chosen not to re-engage. In doing so, he has not offered the Panel any opportunity to exercise leniency.

55. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

 

Order

ORDER: The Registrar is directed to remove the name of Mr Christopher R Manning from the Register with immediate effect.

Notes

Interim Order:


Proceeding with the application in the Registrant’s absence
56. Ms Luscombe made an application for the hearing to proceed in the Registrant’s absence in order to consider an application by the HCPC for an interim order.


57. The Panel decided that it was appropriate to consider the HCPC’s application for an interim order in the absence of the Registrant because he had been informed in the Notice of Hearing sent to him on 6 September 2019 that such an application might be made, and he has not responded with regard to that warning. Furthermore, the Panel has made findings which identify a need to uphold proper standards of conduct and behaviour.


Decision
58. In considering the HCPC’s application for an immediate Interim Suspension Order, the Panel was mindful that when a substantive sanction is imposed, a registrant’s entitlement to practise is unrestricted while their appeal rights against the substantive sanction remain outstanding. The Panel concluded that in view of its findings it would not be appropriate for the Registrant to return to practice unrestricted during the appeal period in order to maintain and uphold trust and confidence in the profession and the regulatory process. Accordingly, the Panel determined that the Registrant’s registration should be suspended on an interim basis.


59. The Panel has concluded that the appropriate length of this interim suspension order should be 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal within the 28 day period.


Interim Order:


The Panel makes an Interim Suspension 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.


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.

Hearing History

History of Hearings for Mr Christopher R Manning

Date Panel Hearing type Outcomes / Status
19/11/2019 Conduct and Competence Committee Final Hearing Struck off