Mrs Jacqueline C Wozniak

Profession: Biomedical scientist

Registration Number: BS27714

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 23/09/2019 End: 17:00 26/09/2019

Location: Avonmouth House, 6 Avonmouth Street, London SE1 6NX

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered with the Health and Care Professions Council and employed by Buckinghamshire Healthcare NHS Trust as a Biomedical Scientist:

1. On various dates between June 2015 and February 2017, you falsely reported pathology test results within the immunology/serology department at Stoke Mandeville Hospital in that you:

a) On one or more occasion, requested a test, but:

i. Did not undertake the test; and

ii. Reported a false result and/or entered a false result onto the system;

b) On one or more occasion, requested and completed a test, but:

i. Entered the result before the analyser gave its test result; and/or

ii. Did not correct the result

2. On one or more occasion, you requested and completed a test but incorrectly interpreted the test result.

3. Your actions as described at paragraph 1 (a) and/or 1 (b) were dishonest.

4. The matters set out at paragraphs 1 and 3 amount to misconduct.

5. The matters set out at paragraph 2 amount to misconduct and/or lack of competence.

6. By reason of your misconduct and/or lack of competence, your fitness to practise as a Biomedical Scientist is impaired.

Finding

Preliminary matters 

Service

1. The Panel was satisfied that Notice of Hearing was sent to the Registrant at her registered address on 10 July 2019 in accordance with the Rules.

Proceeding in absence

2. The Registrant did not attend the hearing. Mr Olphert submitted that that Panel should proceed in her absence, as she had voluntarily absented herself and the witnesses had attended. He argued that it was in the interests of justice to proceed within a reasonable timeframe.

3. The Panel heard and accepted the advice of the Legal Assessor.

4. In reaching a decision the Panel took into account the Registrant’s Response Proforma, in which she stated that she did not intend to attend the hearing. The Registrant has made no request for an adjournment. She has not provided a statement. The Panel was satisfied that service had been effected and that the HCPC had taken all reasonable steps to secure the Registrant’s attendance at the hearing.

5. The Panel concluded that the Registrant had voluntarily absented herself and that there was no reasonable likelihood that she would attend on a future date, and that no purpose would be served by adjourning.

6. The allegation spans a period between June 2015 and February 2017. The Panel was aware that there were two witnesses in attendance to give evidence. The Panel found that it was in the interest of justice to proceed so as to avoid unnecessary delay and to ensure that the facts remained fresh in the minds of the witnesses, who had attended the hearing.

Hearing in Private

7. Mr Olphert invited the Panel to hear those parts of the evidence relating to the Registrant’s health and private life in private. The Panel accepted the advice of the Legal Assessor and considered the HCPTS Practice Note on “Conducting Hearings in Private”. The Panel found that, despite the presumption in favour of public hearings, it could exercise its discretion to hear a case in private where the evidence related to the health and private life of a registrant. Having balanced the competing interests, the Panel found that it was in the interests of justice for those parts of the hearing relating to the Registrant’s health and private life to be held in private.

Application to amend the Allegation

8. The HCPC applied to amend Particular 4. The unamended particular read:

“The matters set out at paragraph 1 amount to misconduct”.

9. Mr Olphert applied to amend it to add the words “and 3” so that the Particular, as amended would read:

“The matters set out at paragraphs 1 and 3 amount to misconduct.”

10. Mr Olphert argued that the amendment was necessary for clarification so that the allegations reflected the HCPC’s case against the Registrant and made sense. He submitted that if dishonesty, as pleaded in Particular 3, was found to be proved, it would be necessary for the Panel to address it when considering whether the statutory ground of misconduct was made out.

11. The Panel accepted the advice of the Legal Assessor and considered the decision in Ireland and Ma v HCPC [2015] EWHC 846 (Admin) and The Professional Standards Authority (PSA) v HCPC and Benedict Doree [2017] EWCA Civ 319.

12. The Panel agreed to the application to amend the Allegation, having satisfied itself that Particulars 1(a) & 1(b) form the basis for Particular 3. The Panel concluded that the amendment was for clarification purposes so that Particular 3 made sense in the context of a regulatory hearing. Dishonesty had been pleaded and it was consistent with this that the Panel should be able to determine whether dishonesty, if found proved, be considered in determining whether any proven facts amounted to a statutory ground. The Registrant was aware of the case against her. The amendment did not introduce a new strand to the case and would not prejudice her. In reaching this conclusion, the Panel had regard to the decision in Doree §54, where the Court held that a “disciplinary committee is entitled to make amendments to the allegations before it, so as to avoid undercharging”. In the latter the court referred to R (on the application of the Council for the Regulation of Health Care Professionals) v Nursing and Midwifery Council [2007] EWHC 1806, which concerned a nurse who had falsified information about her qualifications and where the regulator failed to allege dishonesty. The Court held that the omissions amounted to a “serious procedural error” and that there was a duty to ensure that the particulars reflected the behaviour that was before the Regulator. In short, the Panel concluded that the Registrant would not be prejudiced by the amendment. Particulars 1(a) & 1(b) set out the basis for the dishonesty pleaded in Particular 3. The amendment was necessary so that the particulars made sense and reflected the allegation against her.

Admission of hearsay evidence

13. Mr Olphert, on behalf of the HCPC, applied to admit the interviews conducted during the Trust’s investigation with three Biomedical Scientists, FB, MN, and WH, who had worked with the Registrant. He accepted that the interviews were hearsay and that the witnesses had not prepared statements for these proceedings, but argued that the interviews were relevant and probative as they would give the Panel an understanding of the working environment for Biomedical Scientists working under the Registrant. In particular, FB, MN, and WH spoke in their interviews of the atmosphere and culture within the Immunology Department and of the Registrant’s reactions when confronted with issues relating to the testing of samples. He referred the Panel to Razzaq v Financial Services Authority [2014] EWCA Civ 770.

14. The Panel accepted the advice of the Legal Assessor that the Panel needed to consider the principles of fairness and relevance.

15. The Panel determined that the interviews of FB, MN, and WH should be excluded. This was hearsay evidence which was more prejudicial than probative. The Panel noted that the three Biomedical Scientists had not prepared witness statements, there had been no attempt to call them as witnesses, and their evidence could not therefore be tested. Their accounts were not directly relevant to the allegations that were addressed in the audit which was carried out. Their evidence added little to the evidence already before the Panel. The Particulars were serious and the Panel found the interviews of FB, MN, and WH would not assist them in reaching a decision on the allegation. The Panel found that the fact that the Registrant had not attended the hearing did not dilute the requirement to observe the standards of fairness and to scrutinise applications to admit hearsay evidence closely.

Background

16. The Registrant was employed by Buckinghamshire Healthcare NHS Trust (the Trust) within the Pathology department, as the Head Biomedical Scientist for Immunology and Serology. On 13 February 2017, a colleague reported to management that the Registrant was falsifying results in the pathology information system. Following advice from Human Resources, the Registrant was confronted about the alleged falsification of test results. She neither accepted nor denied the falsification of results. The Registrant was suspended pending an investigation on 21 February 2017.

17. The Trust appointed JD, Divisional Director of Integrated Medicine, to conduct an investigation. As this was a serious incident involving a senior member of staff, a Clinical Advisory Group (CAG) was set up to oversee the investigation and to provide assurance that the allegation of falsification of results was investigated thoroughly. The Trust also set up a Pathology Oversight Group (POG) and a Pathology Incident Management Group to define and scrutinise the specific nature of the alleged falsified results. These groups were created to ensure good governance in light of the concerns about the potential scope of the falsification of results and in order to identify the risk of harm and/or any actual harm that had been caused to patients.

18. The investigation included an audit of test results which eventually extended to 80863 tests over a two-year period. KC and a colleague undertook a look-back exercise to ascertain the extent of the potential falsifications.

19. The Registrant resigned from her post on 1 November 2017 and the matter was subsequently referred to the HCPC.

Assessment of Witnesses

JD – Divisional Director of Integrated Medicine

20. The Panel found JD to be credible. She had a straightforward manner and her evidence was clear and concise. Her explanations of the issues were easy to follow and relevant.

21. She gave evidence as to the background to this incident, which came to light as a result of information given by a colleague referred to as the ‘whistleblower’ within the Immunology Department. JD explained that this was an extremely serious incident. The audit took a year to complete and involved two senior Biomedical Scientists working approximately fulltime for three months and thereafter for eighty percent of their time. The results of the audit showed that the Registrant had falsified results in three ways:

(i) The test was requested but there was no evidence of it being carried out and a false result was entered;

(ii)  The test was carried out but a result was entered onto the system manually before the results came back from analysis, and the result was not subsequently corrected;

(iii)  The test was requested and the result was incorrectly interpreted.

KC – lead Biomedical Scientist charged with audit

22. KC was a credible witness. Her evidence was straightforward and clear. She explained that she worked with another Biomedical Scientist (CS) to audit the tests carried out by the department. In total, 80863 tests were reviewed.

23. The audit identified a number of tests which were anomalous, some 358 of which were attributed to the Registrant. The results were set out in the audit report. KC was knowledgeable in relation to the practices of the department, the detail of the audit process, and the significance of the tests which the Registrant was alleged to have falsified.

The Registrant

24. The Panel recognised that the Registrant was of good character and that she had worked for the Trust for 38 years. The Panel read her interviews carefully, together with her statement provided during the investigation. It also considered the Occupational Health Reports.

25. The Registrant made partial admissions during an Investigatory Meeting on 26 May 2017, describing one of the tests as stupid and costing “a lot of money”. She gave the ANCA test as an example stating, that “once one result comes back you could predict the other one”. Later she stated that she reviewed the tests and “used my knowledge to inform judgments on other aspects of the tests”.

Decision on Facts

Particular 1(a) – found proved

26. The Panel found this Particular proved on the documentary and oral evidence. KC provided an audit summary, which was detailed and clear. In her oral and written evidence she explained that, of the 358 anomalies, a number of the tests had been falsified in that they had not been undertaken at all. She referred the Panel to Exhibit 20, which was a TPPA (Syphilis) test and an example of a test which was not undertaken at all. The audit showed that there was no record of the sample ever being tested, despite the fact that a request for testing was entered onto the information system on Friday 10 February 2017 at 4.34pm. She stated that a TPPA test takes three hours to process and the Immunology Laboratory shut at 5.00pm on a Friday, not reopening until 9.00 am on Monday. It was very unlikely that a result would be available at 9.29am, which is when the result was manually logged onto the system. Further investigation confirmed that the sample was not on a departmental work list and was never sent to the reference laboratory. KC described the thorough nature of the audit, which included a process of eliminating the possibility that other staff members working in the Immunology Department may have been responsible.

27. The Panel therefore accepted the evidence of KC that the sample was not tested, because there was no worksheet and a result could not have been obtained within the timeframe. The Panel also took into account the evidence of JD and KC that the TPPA test was part of a group of tests and an experienced practitioner may be able to anticipate a result from other tests. It was easier to falsify as it was a manual rather than an automated test.

28. As the Registrant did not attend, the Panel attached limited weight to her admission on her Response Proforma, but noted that she made partial admissions during the investigation which are set out in summary at paragraph 25 above. Taking all of these factors together, this Particular is found proved on the balance of probabilities.

Particular 1(b) – found proved

29. The Panel found this Particular proved on the oral evidence and documentary evidence provided by KC. The Panel accepted the evidence of KC that the Registrant had manually inputted results for samples that were undergoing automated analysis before the results were received. This was reflected in Exhibit 20 and evidenced by an example of an HBSG (Hepatitis B) test. The Panel found that the result was entered manually on the pathology information system by the Registrant at 3.06pm despite the fact that it would have been available from the analyser some six minutes later by 3.12pm. The result was only detectable by noting that there was a manual entry on the audit trail when there should have been an automatic one. Once the result had been entered manually, the automated result would be blocked from being entered into the pathology information system. There was no evidence in the audit that the Registrant attempted subsequently to change the result to the correct value. Although this was one example the Panel considered Appendix 3 of the Investigation Report, which set out the scale of the falsified entries made in this way, in reaching their decision in respect of this Particular. In addition, the Registrant had not denied that she did this and she made equivocal admissions at various points during questioning by the Trust.

Particular 2 – found not proved

30. This Particular is not proved because the evidence does not reflect the Particular. The Particular reads that the Registrant “incorrectly interpreted” a VZV test. The evidence of KC was clear and unequivocal that the result was deliberately changed on Winpath. This change was clinically significant, in that it moved the result from one category to another. The actual test result was equivocal. The Registrant changed it to a value which reflected an “immune status on the day of testing”. As the Panel accepted that the Registrant deliberately changed the result, the Particular does not reflect her actions. The words “incorrectly interpreted” connote a mistake rather than an action designed to deliberately mislead.

Particular 3 – found proved

31. The Panel finds this Particular proved. The Panel adopted the test for dishonesty laid out by the Supreme Court in Ivey v Genting Casinos [2017] UKSC 74. The Panel first considered the Registrant’s actual knowledge and/or her genuinely held belief. Whilst the Panel accepted that the Registrant had health issues at the time, there was no evidence to suggest that she did not know what she was doing. The evidence from JD and KC was that the pattern which emerged from the audit was consistent with the Registrant selecting specific tests which would have been easier for an experienced practitioner to anticipate whilst minimising the risk to patients. There was no evidence of mistakes across a wide selection of her work, but rather particular areas and tests which were not carried out or for which the results were falsified. She was an experienced and able practitioner. In addition, the audit showed that the Registrant engaged in this behaviour over an extended period of time. The Panel therefore found that the Registrant knew exactly what she was doing, notwithstanding her health problems.

32. The Panel next considered whether the conduct was honest or dishonest by the standards of ordinary decent people. The Panel found that repeatedly entering results for tests which had not been carried out as alleged in Particular 1(b) would be considered dishonest by ordinary people, because they would feel that it was dishonest to purport to have sent a sample for testing and to make up the result when the relevant test had not been undertaken. Similarly, the Panel found that the ordinary decent person would think it was dishonest to manually enter a fabricated result for a test before it came back.

Decision on Grounds

33. Mr Olphert, on behalf of the HCPC, invited the Panel to consider misconduct in relation to all of the factual particulars and lack of competence in relation to Particular 2 only. The Panel considered each ground separately, and considered the HCPC Standards of Conduct, Performance and Ethics and the HCPC Standards of Proficiency for Biomedical Scientists.

34. The Panel accepted the advice of the Legal Assessor.

Lack of Competence

35. As the Panel found that Particular 2 did not correctly reflect the Registrant’s conduct, the Particular was not proved, and therefore the issue of lack of competence does not arise.

Misconduct

36. In reaching a decision on misconduct, the Panel used as its starting point the guidance set out in Roylance v GMC (no 2) [2000]1 AC 311 that ‘misconduct’ is a word of general effect, involving an act or omission which falls short of what would be proper in the circumstance. The Panel accepted that in order to cross the threshold for misconduct, the act or omission must be serious.

37. The Panel found that Particulars 1(a) and 1(b) were serious and that the Registrant’s actions in falsifying the results of over 350 tests were dishonest (Particular 3). The Registrant was an experienced Biomedical Scientist in a senior management position. The Panel accepted the evidence of JD that because of the Registrant’s seniority there was no one to check her work. The falsification of results only came to light through the intervention of a whistleblower. The Registrant was trusted within the Trust to lead by example with honesty and integrity at all times. The Registrant’s unilateral decisions not to carry out certain tests, as set out in Particular 1(a), and to input other results manually before they came through, as set out in Particular 1(b), were so serious that only a finding of misconduct could be made. The evidence was that the Registrant’s behaviour extended over a significant period of time. The cost to the Trust in investigating it was enormous and the impact on staff is still felt within the Trust. Therefore, the ground of misconduct is established.

38. The matters on which the Panel found misconduct represent a breach of Standard 13 of HCPC Standards of Conduct, Performance and Ethics (2012) and Standard 9.1 of HCPC Standards of Conduct, Performance and Ethics (January 2016).

Decision on Impairment

39. Having found misconduct in relation to Particulars 1(a), 1(b), and 3, the Panel went on to consider whether, by reason of that finding of misconduct, the Registrant’s fitness to practise is currently impaired. The Panel reminded itself of the contents of the HCPTS Practice Note on “Finding that Fitness to Practise is ‘Impaired’”. The Panel had regard to the decision in Cohen v GMC [2008] EWHC 581 Admin, where the Court provided guidance to panels on the proper approach to a decision on impairment. The Panel also took into account the observations of Cox J in CHRE v NMC & Grant [2011] EWHC 927 Admin, at paragraph 74, where she held that: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular case”.

40. On the personal component, the Panel accepted that the Registrant has some remorse and insight. The Panel, however, found that there was a disconnect between the Registrant’s expressions of remorse and a genuine intention to mitigate the harm she had caused. The Registrant’s admissions during the investigation were limited and, despite requests by JD that she disclose what had happened, the Registrant did not assist in a meaningful manner by giving a timeframe or a proper explanation of what she had done. This resulted in a complex investigation that would have been shortened had she co-operated. Therefore, her insight remains limited. The Registrant does not intend to return to work and has engaged in the process minimally. She has not attempted to remediate her actions. The Panel therefore found that the risk of repetition remains high.

41. The Panel then considered the public component - whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in this case. A finding of dishonesty of a senior member of staff in a position of authority is extremely serious. Such a position carries responsibility to lead by example and the public would expect a Biomedical Scientist in a managerial role to act with honesty and integrity. Although none of the patients whose results were falsified suffered serious or moderate harm, a number had to be re-called for re-testing. Notwithstanding the evidence that the Registrant used her knowledge to falsify tests which had the least risk of causing harm to patients, the behaviour was extremely serious. The resulting audit and investigation took the Trust’s limited and valuable resources away from members of the public and cost the Trust a considerable amount of money, and diverted two skilled Biomedical Scientists from important work for almost a whole year. The Panel found that the public component has been met and that public confidence in the profession and the Regulator would be undermined were a finding of impairment not made.

42. The Panel therefore finds that the Registrant’s fitness to practise is currently impaired on both the personal and public components.

Decision on Sanction

43. The Panel heard the submissions of Mr Olphert with regard to sanction. The Panel accepted the advice of the Legal Assessor.

44. The Panel had regard to all the evidence presented and to the HCPC Sanctions Policy. The Panel bore in mind that the primary function of a sanction is to protect the public. The Panel had regard to the risk that the Registrant might pose to patients, the deterrent effect on other registrants, and public confidence in the profession and the regulatory process. The Panel reminded itself that a sanction is not to be punitive, although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining the appropriate sanction.

45. The Panel considered the mitigating factors in this case were:

• The Registrant was of previous good character;

• The Registrant was experiencing stress at home and at work;

• The Registrant did not intend to harm patients;

• The Registrant has shown some remorse and insight.

46. The Panel considered the aggravating factors in this case to be:

• The Registrant’s actions were dishonest and spanned a significant period of time. The Registrant’s dishonesty was difficult to detect; indeed, it only came to light when exposed by a whistleblower. Her actions clearly amounted to an abuse of her position of authority, as she was sufficiently senior that she was not subjected to scrutiny;

• The Registrant’s dishonesty was intrinsically linked to her professional life. The breach of trust is all the more serious because of her seniority;

• The Registrant falsified 358 test results over a period of two years. This case therefore falls into the upper end of the scale of dishonesty and reflects significant dishonest behaviour over a long period of time;

• The Registrant showed a disregard for the ethics of her profession. There is a duty on Biomedical Scientists not just to act honestly but also to carry out analytical processes that are legitimately requested and to record the results accurately. The Registrant’s actions displayed a reckless disregard for the process. She was over-reliant on her experience and made decisions about which test result to falsify and, ultimately, which tests to miss out altogether;

• Although there was minimal harm to patients, the falsification of test results has the potential to cause serious harm, and breached a fundamental tenet of her profession;

• The Registrant failed to engage in a meaningful manner with the Trust investigation. This meant that the Trust was compelled to spend significant time and resources on an extensive audit, which was approximately one year in length;

• The Registrant’s actions meant that some patients had to be re-called for repeat testing;

• Although the Registrant has expressed some remorse and has apologised, she has never properly addressed the issue that her actions were dishonest. On the contrary, she has minimised and redefined her falsifications as errors. Therefore, the Panel found that there was an absence of understanding and an inability or unwillingness to explain her conduct.

47. In considering the matter of sanction, the Panel started with the least restrictive, moving upwards. The Panel first considered whether to take no action or to make a Caution Order. The finding of dishonesty means that the Registrant’s behaviour was too serious either to take no action or for a Caution Order to be considered appropriate.

48. The Panel next considered the imposition of a Conditions of Practice Order. The Panel concluded that the scale of the dishonesty was such that conditions could not be formulated which would adequately address the risk posed by the Registrant, nor could they protect patients, colleagues, and the public during the period they would be in force.

49. The Panel went on to consider whether a period of suspension would be appropriate in this case. Whilst a period of suspension would protect the public, the Panel found it would be insufficient to mark the seriousness of the conduct and the scale of the dishonesty in this case. The mitigating factors in this case were not sufficient to enable the Panel to draw back from striking the Registrant’s name off the Register. In particular, the Panel had no evidence that the Registrant’s health or the context in which she was working contributed to her dishonesty. The Panel considered that the Registrant’s misconduct in falsifying test results was dishonest. It was fortunate that patients did not suffer significant harm as a result of the Registrant’s action.

50. Given the serious nature of the Registrant’s conduct, together with the risk of repetition which has been identified, the Panel is satisfied that a Suspension Order is not proportionate. The Panel does not find that this dishonesty, which is at the high end of the scale, is remediable.

51. With regard to the wider public interest, the public must be assured that, when subject to procedures requiring the testing of samples, the highest standards are required of Biomedical Scientists, particularly of this seniority. Patients must be able to trust the accuracy of their test results. In the Panel’s view, a Striking Off Order is necessary as a deterrent to other registrants and to maintain public confidence in the profession and the regulatory process.

52. Therefore, the Panel is satisfied that the only appropriate and proportionate response to protect the public and the wider public interest in these circumstances is to make a Striking Off Order.

Order

That the Registrar is directed to strike the name of Mrs Jacqueline C Wozniak from the Register on the date this order comes into effect.

Notes

Interim Order

Proceeding in the absence of the Registrant

1. Mr Olphert invited the Panel to proceed to hear an application for an Interim Order in the absence of the Registrant.

2. The Panel accepted the advice of the Legal Assessor.

3. The Panel found that the Registrant was on notice that the HCPC might apply for an Interim Order at the conclusion of the hearing. The Panel determined, for the reasons set out in the substantive determination, that it was appropriate to proceed in the absence of the Registrant to hear the application for an Interim Order.

Application

4. The Panel heard submissions from Mr Olphert. He argued that an Interim Order was necessary both because of the serious and ongoing risk to patients and to maintain public confidence in the profession during any appeal period.

5. The Panel accepted the advice of the Legal Assessor.

Panel’s Decision

6. The Panel found that this was a case where an Interim Order was necessary. The Panel found that there would be a serious and ongoing risk to patients if an Interim Order was not made and the Registrant returned to unrestricted practice during an appeal period. The risks in this case are so high that the Panel has imposed an order striking the Registrant off the Register. An Interim Order is therefore necessary both to protect patients and to maintain public confidence in the profession and the regulatory process.

7. 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 Mrs Jacqueline C Wozniak

Date Panel Hearing type Outcomes / Status
23/09/2019 Conduct and Competence Committee Final Hearing Struck off