Mr Jonathan Sheriff

Preliminary Matters

Service

1. On or about the 23 March 2020 and acting in accordance with Government recommendations concerning the COVID-19 pandemic, the HCPC decided to suspend all in-person hearings and instead hold them virtually. The HCPC also decided that during the period of suspension, there would be a new process whereby Notice of hearings would be sent by email.

2. The Panel has seen an email dated 10 June 2020 sent to the Registrant at the email address which appears in his entry on the Register. The email informed the Registrant of the dates of this final hearing. It has seen a signed statement, also dated 10 June 2020, which confirms that the email was sent to the Registrant’s email address.

3. The Panel is satisfied on the documentation it has seen that the Registrant has been served with proper notice of today’s hearing.

Proceeding in the absence of the Registrant

4. Mr Lee Bridges for the HCPC applied for today’s hearing to proceed in the absence of the Registrant. He submitted that the Registrant has voluntarily waived his right to attend and has not sought any adjournment. He further submitted that as the Registrant has indicated that he does not intend to attend at all, an adjournment is unlikely to secure his attendance on a later date.

5.In reaching its decision, the Panel has considered the various matters set out in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant”. It has also received and accepted legal advice. The Panel notes that it should exercise great care and caution before deciding to proceed in the absence of a registrant.

6.The Panel has decided to grant the HCPC’s application and proceed in the absence of the Registrant for the following reasons:

a)    it is satisfied that all reasonable steps have been taken to notify the Registrant of today’s hearing in accordance with the relevant Rules;

b)    the Registrant has made it abundantly clear, even as late as this morning via a telephone call to the HCPC, that he does not intend to attend these proceedings or be represented at them; he has had the opportunity to change his mind and has chosen not to take it, and so it is clear that he has deliberately and voluntarily waived his right to be present;

c)    the Registrant has not applied for an adjournment;

d)    there is no reason to suppose that an adjournment would result in the future attendance of the Registrant;

e)    no adverse inference will be drawn as a result of the Registrant’s absence;

f)     there are three witnesses and the Panel has concerns as to the effect of any adjournment on their memories of the events about which they are to give evidence;

g)    whilst there is a disadvantage to the Registrant in not being present today, the Panel also considers that there is an advantage to him in the final hearing being completed; there is also a clear public interest in proceeding with this hearing expeditiously;

h)    in conducting the balancing exercise between the Registrant’s interests and the wider public interest, the Panel is satisfied that the balance falls in favour of the hearing proceeding today.

Application to amend the Allegation

7. At the outset of the proceedings, Mr Bridges for the HCPC applied to amend the Allegation. The Registrant was notified of the proposed amendments in a letter dated 15 April 2020 when he was also informed that he could object to them at this hearing. The proposed amendments also appear in the HCPC’s Case Summary which was provided to the Registrant as part of the bundle of documents he was sent for this hearing. In his written submissions set out in a defence document, the Registrant confirms that he received the final hearing bundle on 23 July 2020.

8. The Panel has received and accepted legal advice. It is aware that in considering this application it must ensure the hearing is a fair one and it should not make any amendments which would prejudice the Registrant. The Panel has considered each proposed amendment individually. It takes the view that the HCPC’s proposed amendments either do not alter the case being advanced against the Registrant or better reflect the evidence which it is expected will be given by its witnesses.

9. The Panel is satisfied that the Registrant was informed of the proposed amendments by letter dated 15 April 2020 and was informed that he could submit any objections at today’s hearing. The Registrant, who has known of the proposed amendments, has not indicated any objections to them in his written submissions for this final hearing.

10. In all the circumstances, the Panel has decided to allow each of the proposed amendments to the Allegation. It is satisfied that there is no unfairness or prejudice to the Registrant. The proposed amendments are minor, better reflect the evidence due to be given and do not affect the way in which the case is put by the HCPC against the Registrant.

Conducting hearings in private:

11. Mr Bridges referred the Panel to the Registrant’s written submissions in which the Registrant applies for references to his health to be heard in private. He did not object on behalf of the HCPC to the Registrant’s application.

12. The Panel has considered the HCPTS Practice Note on “Conducting Hearings in Private”. It has also received and accepted legal advice. The Panel is satisfied in order to safeguard the Registrant’s private life, that any references to his health condition or private life should be heard in private. All other parts of the hearing will be in public session.

Background

13. The Registrant qualified as a BMS in 2008 and achieved the level of Specialist Practitioner in 2013. He was employed as a locum Biomedical Scientist (BMS) at the Hull University Teaching Hospitals NHS Trust (the Trust) from 27 June 2018. He was appointed to a permanent role as a Band 6 BMS by the Trust on 6 August 2018. This Band 6 BMS role was subject to a period of six months’ probation which involved review meetings to assess the Registrant’s progress. The Registrant left the Trust on 30 November 2018 following an unsuccessful probationary period.

14. Concerns were raised regarding the Registrant’s practice from shortly after he was taken on as a Band 6 BMS in August 2018 and November 2018 when he left the Trust. The concerns related to the quality of the Registrant’s clinical practice when sectioning and embedding patient samples. An internal report was prepared for management collating the concerns in November 2018. On 21 December 2018, the Trust referred the concerns to the HCPC.

Decision

Evidence

15. The Panel heard evidence from three witnesses called by the HCPC. The evidence called by the HCPC included some hearsay evidence. Some of this derived from contemporaneous documentation. The Panel has received and accepted legal advice as to how to approach such evidence. The Panel has borne in mind that this evidence has not been tested by cross-examination or by any questions from the Panel and has therefore taken particular care when considering it. The Panel has not heard evidence from the Registrant but has received written submissions from him. Appended to those written submissions, were a number of testimonials.

16. JM was a Senior BMS when the Registrant first started work at the Trust as a locum BMS. She became a Chief BMS in September 2018. JM was the Registrant’s Line Manager when he took up permanent employment as a Band 6 BMS. She then became involved, with others, in the induction procedure for the Registrant.

17. EH is a Senior BMS employed in the Trust’s Immunocytochemistry area of the Histopathology Department. Part of her responsibility is to train new staff members and she was involved in training the Registrant when he started work within her department.

18. AD has been a Chief BMS at the Trust since August 2018. Prior to that AD was a Senior BMS working within the Trust’s Cellular Pathology Department where she was dealing with specimen reception, specimen dissection and tissue processing section. She did not work directly with the Registrant but sat near to him and was one of his managers when he started work as a locum BMS.

19. The Panel considers all three HCPC witness gave credible and consistent evidence. Each was willing to help the Panel and demonstrated relevant knowledge. While it was apparent that JM had had some issues with the Registrant, the Panel notes that she was open about these and the Panel is satisfied that this did not affect the evidence she gave. The Panel also notes that AD was the only witness who conceded that at the relevant time, there was a certain amount of pressure on the BMS’s within the department to deal with a backlog of work. AD made the point, which the Panel accepts, that the backlog of work would have been obvious to the Registrant, as indeed it would have been to anyone working in the department.

20. Although the Panel did not hear any evidence from the Registrant, it was pleased to receive his lengthy written submissions. The Panel has taken these into account in reaching its decision. The Panel was also assisted by the testimonial evidence from a number of practitioners at two NHS Trust Hospitals where the Registrant had worked for a short time after leaving the Trust.

Decision on facts:

Particular 1a) and 1b) was found proved

21. The Panel accepts the evidence of JM that on 14 August 2018 she was told by another member of staff that the Registrant had mislabelled the slides on two cases which she then identified as those set out in Particular 1a) and 1b). The error had come to light when another member of staff had checked to see if the slides which contained the sectioned tissue matched the block from which they had been taken. In this instance, the member of staff conducting that check had turned the blocks over and found that they did not match. The Panel accepts JM’s evidence that the mislabelling in this case involved two different patients and two different cases. It also accepts JM’s evidence, which appears to contradict that of the Registrant, that the tissue type being sampled for these different patients was the same.

22. The Panel has seen an “Incident Reflective Practice Sheet” which was signed by JM on 14 August 2018. The Panel accepts JM’s evidence that this was completed anonymously by the Registrant as part of the Trust’s internal practice when errors are made. It also accepts JM’s evidence that JM discussed the mislabelling incident with the Registrant before she signed the Practice Sheet. It is clear from the Incident Reflective Practice Sheet that the Registrant accepted responsibility at the time for the two mislabelling errors. In his reflections, the Registrant refers to the mislabelling being in relation to two different patients. In addition, the Panel notes that the mislabelling incident was discussed with the Registrant at his mid-probationary hearing held on 23 October 2018.

23. In reaching its decision, the Panel has also relied on two further documents which were provided by the Registrant. First, his defence document. Although the Registrant has not addressed each of the Particulars of the Allegation in turn, he does admit to having made errors whilst employed by the Trust, in the following way:

“Only two of the six errors made at Hull Royal Infirmary have been regarded as serious clinical incidents, however [the Registrant] regards these errors as honest mistakes to which he has provided reflection upon, and had demonstrated significant remorse over the ramifications of these errors”.

The Panel takes the Registrant’s reference to having “provided reflection upon” to refer to the Incident Reflective Practice Sheet signed by JM on 14 August 2018 in which he admits mislabelling the two slides in question, however, he stated, “2 patients could have been mixed up (although different tissues)”.

24. The Panel has also seen a Pro-Forma Information Response document which the Registrant completed in April 2020 in response to the Notice of Allegation which was sent to him in January 2020. In this document, the Registrant indicated that he admitted the facts set out in the Allegation against him in its entirety. The Panel notes that this Pro-Forma Information Response was in relation to the Allegation as originally drafted, and before it had granted the HCPC’s application amend it. The Panel considers that the amendments to Particular 1a) and 1b) have not made any significant difference to the case being put by the HCPC regarding the mislabelling of the two slides. In these circumstances, the Panel has relied on the Registrant’s admission.

25. The Panel is satisfied that the Registrant crossed two cases over when sectioning when he mislabelled the slide for block 18H18942 with the slide for block 18H18943 and when he mislabelled 18H18942 Block 1 as Block 4 and finds Particular 1a) and 1b) proved.
Particular 2 was found proved

26. The Panel has seen the Trust’s Standard Operating Procedure [SOP] on Tissue Embedding which includes a Document Signatory Form. It accepts JM’s evidence that the Registrant signed this on 10 September 2018 confirming that he had read the SOP and was aware of the correct procedure.

27. The SOP sets out steps to be taken to ensure that samples are properly identified, so as to avoid any mistakes occurring. It states at 5.1 “the blocks and cards should match. There should be the same number of blocking out as stated on the card”. The Panel accepts JM’s evidence that a card is assigned to each sample and that this card must be checked before the embedding procedure starts as the card contains information about how many blocks of tissue have been taken from a patient’s sample and it is important to ensure that the number of blocks taken from a patient’s sample match those on the card.

28. The Panel is satisfied that JM conducted an embedding competency assessment of the Registrant on 25 September 2018. It accepts her evidence that she observed that the Registrant did not check the card before proceeding with the embedding of case 18H23184. JM pointed this out to the Registrant at the time and he agreed that he should have done so and explained that he was just trying to get through as much work as possible. The Registrant indicated that in the future he would make sure he worked in accordance with the SOP.

29. The Panel has also relied on the Pro-Forma Information Response document referred to in paragraph 24 above. The Panel considers that the amendment to Particular 2 has not made any difference to the case being put by the HCPC. In these circumstances, the Panel has relied on the Registrant’s admission.

30. The Panel is satisfied that the Registrant did not count how many blocks he was embedding on case 18H23184 during his embedding competency assessment on 25 September 2018 and finds Particular 2 of the Allegation proved.
Particular 3 was found proved

31. The Panel accepts the evidence of JM that the Registrant had incorrectly embedded a Hirschsprung’s biopsy on case 18H23112. JM became aware that this had occurred during an embedding competency assessment she was conducting with the Registrant. A member of staff had returned the sample slide for re-embedding because the orientation was incorrect. It had been embedded flat when it should have been embedded on its edge. The Registrant was with JM when the member of staff brought the sample back to her. In her evidence, JM explained the importance of the orientation of the biopsy in the wax and that it should be held in the correct position whilst the wax sets around it. According to JM, the Registrant admitted that he had embedded this case.

32. The Panel accepts the Registrant’s admission in his defence document that he had made a serious error when embedding a Hirschsprung’s biopsy. It has also seen an Incident Reflective Practice Sheet signed by JM on the following day which relates to case 18H23112 and accepts her evidence that this was completed anonymously by the Registrant. In this, the Registrant accepts that the Hirschsprung’s biopsy was embedded incorrectly and explained how it may have happened.

33. The Panel has also relied on the Pro-Forma Information Response document referred to in paragraph 24 above. The Panel considers that the amendment to Particular 3 has not made any difference to the case being put by the HCPC. In these circumstances, the Panel has relied on the Registrant’s admission.

34. The Panel is satisfied that the Registrant embedded a Hirschsprung’s biopsy incorrectly on case 18H23112 on 25 September 2018 and finds Particular 3 of the Allegation proved.
Particular 4 was found proved

35. The Panel has seen a copy of the Trust’s SOPs for Microtomy. This sets out at paragraph 12.2.5 the standard setting for sectioning used by the Trust which states “Set the section to 4 [microns]”. The Panel accepts the evidence of both JM and EH that the Trust’s procedure was to section at four microns unless a sample was particularly difficult to section at four microns or the specific instructions and/or guidance indicated a different setting. The Panel has also seen a document dated 7 September 2018 which is entitled “Immunocytochemistry” where, in paragraph 5.3, the standard setting of four microns for sectioning is repeated. In the same paragraph, the setting for sectioning sentinel lymph nodes is shown as three microns.

36. The Panel accepts the evidence of EH that on 18 October 2018 she was training the Registrant in Immunocytochemistry. According to EH, on the afternoon of 18 October 2018, she observed the Registrant whilst he was sectioning samples. She thought he was working too fast and was turning the handle on the microtome too vigorously. This was resulting in the sections he was cutting being too thick. When she pointed this out to the Registrant, he told her that because of his technique on the microtome, he usually cut sections at three microns to compensate for this. EH said she left the Registrant for a short time whilst she took a sample to place in the oven. At that time, the Registrant was about to cut a section from a sentinel lymph node which had already been lined up on the microtome. When EH returned, she noticed that the section cut by the Registrant was in the water bath and that it was too thick. She asked the Registrant to cut another thinner section, which he did. EH told the Panel that lymph node sections needed to be thin because the cells in a lymph node are very dense and unless a single layer of cells is cut, a section cannot be properly examined under a microscope.

37. The Panel also accepts EH’s evidence that she had been informed on 22 October 2018 that a Corrective Action/Preventative Action (CA/PA) needed to be raised in relation to the sentinel lymph node which had been sectioned by the Registrant. It had been noticed when the case was screened that one and a half lymph nodes had been cut through and yet only half the original material on the block was on the slide when it was block checked. EH stated that she did not know precisely how this could have happened as she had not seen the Registrant cut the section which she had rejected as being too thick. She could only speculate as to what had occurred. She said that she did not notice any discarded tissue at the time. The Panel is satisfied that tissue from the block was missing when it was later screened and that this must have occurred when the Registrant was cutting the relevant block. It cannot say precisely how or why this had occurred.

38. The Panel has seen an Incident Reflective Practice Sheet which was completed on 25 October 2018 relating to this incident and accepts EH’s evidence that the Registrant completed this anonymously before she signed it. In this document, the Registrant refers to having cut a section which had been rejected as it was too thick before cutting a section that had been acceptable. The only reference he makes to any tissue being discarded is to the section which he had cut which was too thick.

39. The Panel has seen the CA/PA raised by EH in relation to the incident. This does not shed any further light on what had happened to cause the loss of the lymph node material.

40. The Panel notes that in his defence document, the Registrant refers to “only two of the six errors” made at Hull Royal Infirmary as having been regarded as serious clinical incidents and he refers to all the errors as having been “honest mistakes” on which he has provided reflections and states that he has demonstrated significant remorse over the ramifications of those errors. The Panel infers from this that the Registrant is making admissions to the Allegation as amended and, whilst not specifically referring to this particular incident, is admitting that he was in error in initially cutting a section which was too thick and in discarding too much tissue.

41. The Panel has also relied on the Pro-Forma Information Response document referred to in paragraph 24 above. The Panel considers that the amendment to Particular 4 has not made any significant difference to the case being put by the HCPC. In these circumstances, the Panel has relied on the Registrant’s admission.

42. The Panel is satisfied that on around 19 October 2018, the Registrant cut a thicker section than he should have from a sentinel lymph node block and that he discarded too much tissue from that block. Accordingly, the Panel finds Particular 3 of the Allegation proved.
Particular 5 was found proved

43. The Panel accepts the evidence of JM that on 27 June 2018, when the Registrant started work as a locum BMS, he had received and signed the SOP on Microtomy confirming that he was aware of the correct procedure. The Panel has seen this document including the signature page which includes the Registrant’s signature confirming that he has read the SOP. The Panel has also seen a sectioning guidance document entitled “Levels Required For Each Specimen Type” which is dated 6 August 2018. It is clear from this document that for Cervical Cone biopsies practitioners are instructed in the following terms “do not take full face”.

44. The Panel accepts that this guidance is designed to assist in the diagnosis and treatment of patients with cervical cancer. In order to properly assess if the cancer has been treated and/or removed a clinician will need to look at the margins of a cervical cone sample to see if any cancerous cells remain. If such a sample is cut to full face, there are no margins for a clinician to assess.

45. The Panel accepts JM’s evidence that on 8 November 2018, a consultant had brought to her attention that a cervical cone biopsy performed by the Registrant had been cut to full face. JM was shown the relevant slide and could see for herself that this was the case. She checked the relevant card and confirmed that it had been the Registrant who had signed this as having performed the procedure. The Panel accepts that JM raised the issue with the Registrant on the same date. He admitted to her that he had cut the cervical cone sample to full face. The Panel is satisfied that the Registrant then completed anonymously an Incident Reflective Practice Sheet regarding the incident. In this document which the Panel has seen, the Registrant accepts that he cut the biopsy to full face. The Panel is satisfied that this was not in accordance with the relevant SOP guidance and was, therefore, cut incorrectly.

46. The Panel also accepts the Registrant’s admission in his defence document that he had made a serious error in relation to the cervical cone biopsy.

47. The Panel has also relied on the Pro-Forma Information Response document referred to in paragraph 24 above. The Panel considers that the amendment to Particular 5 has not made any difference to the case being put by the HCPC. In these circumstances, the Panel has relied on the Registrant’s admission.

48. The Panel is satisfied that on 8 November 2018, the Registrant incorrectly cut a cervical cone sample to full face and finds Particular 5 of the Allegation proved.
Particular 6a) and 6b) were found not proved

49. The Panel accepts that registered BMSs are required by their regulator, the HCPC, to undertake Continuing Professional Development [CPD] as part of their registration. The Panel has seen the Registrant’s job description for the Band 6 BMS role which he started on 6 August 2018. In this, under the heading “Knowledge and skills”, the successful applicant was required to have “extensive experience in the field of the relevant discipline and has evidence all of the following”. There then follows a list which includes “Evidence of Continuing Professional Development” and then requires the successful applicant to participate in CPD activities. The Panel accepts JM’s evidence that the Trust very rarely asked for evidence of CPD and that she had only asked the Registrant for proof of his CPD after a conversation with him in which she had understood him to say that he said he had not done any CPD. When JM later raised this with the Registrant, he denied saying this.

50. The Panel has also seen emails in October 2018 between JM and the Registrant regarding CPD. The Registrant provided JM with an outline log of his CPD. JM did not consider this to be adequate. In an email to JM dated 12 October 2018, the Registrant explained that he had completed his CPD but that it was not organised into a neat folder. He stated that he had the relevant paperwork at his home, and it was now packed into boxes. The Registrant explained that he had documents from the time that he was working in Veterinary Pathology work which he had been doing “which kept my HCPC requirements, which included service improvement and dissection”. The Panel understands from the documentary evidence that the Registrant worked in Veterinary Pathology from November 2017 to June 2018. The Panel also notes that, at this time the Registrant was in the process of trying to re-locate to the Hull area and had been travelling long distances each day to work.

51. The Panel has reviewed the HCPC requirements for CPD and how this should be evidenced. It is a requirement for a registered BMS to undertake CPD and to self-certify that they have done so when renewing their registration. The HCPC may audit the CPD of any registered BMS and seek evidence of the CPD undertaken. The Panel has seen a further email from JM to the Registrant dated 15 October 2018 in which she invites him to revisit his outline CPD document and update it in accordance with some guidance that she has provided. In the email JM states: “For clarification, this is not a requirement that I, or the Trust have set” and she points out that it is a requirement of the HCPC.

52. The Panel has seen no evidence that the HCPC audited the Registrant’s CPD for the relevant period. All that seems to have occurred is that the Registrant did not provide the Trust with evidence of his CPD for the relevant period and this does not form part of the Allegation against him. The Panel finds that it is as likely that the Registrant carried out sufficient CPD between 1 October 2017 and 15 October 2018 as that he did not do so. It also finds that it is as likely that the Registrant had either an adequate and/or up-to-date record of his CPD for that period as that he did not have such a record. Accordingly, the Panel is not satisfied that the HCPC has discharged the burden of proving either Particular 6a) or Particular 6b) and therefore finds them not proved.

Decision on Grounds

53. In reaching its decision on the statutory ground of misconduct, the Panel has taken account of the submissions of Mr Bridges for the HCPC, the Registrant’s defence document, and it has received and accepted legal advice.

54. The Panel is satisfied that Registrant’s conduct in relation to all the matters it has found proved fell far below the high standards to be expected of a BMS. In two of the cases, the Registrant’s misconduct caused direct harm to patients.

55. In relation to Particular 3, it was not possible to correct the embedding error with the result that the 13-year old female patient had to be recalled so that a further Hirschsprung biopsy could be taken. This would have caused inevitable worry, as well as the trauma of undergoing another surgical procedure. As a Specialist BMS (Band 6), the Registrant should have been able to embed a Hirschsprung biopsy and indeed had done one correctly prior to his training assessment. The Panel takes the view that it is no excuse that the Registrant was “rushing through work” as he stated in the Incident Reflective Practice Sheet.

56. In relation Particular 5, by incorrectly cutting the cervical cone sample to full face, the Registrant had ignored the specific guidance given by the Trust. His actions also meant that the consultant was unable to give the patient a firm diagnosis either that they were now clear of cancer or that the cancer was still present. No further sample could be taken from the relevant site and so the outcome for the patient was totally unsatisfactory with that patient being left in a state of uncertainty going forwards. The Panel has considered the Registrant’s explanation in the Incident Reflective Practice Sheet where he states that he had made an assumption that he should cut the sample to “full face” as the relevant Lab 1A card did not include a specific entry. The Panel take the view that the Registrant should have sought assistance as the relevant guidance was clear that cervical cone samples should not be cut to “full face”.

57. In the other three cases where the Registrant made errors, the Panel has concluded that there was the potential for serious harm to have been caused to the patients involved. However, due to the number of checks and balances put in place by the Trust, it is fortunate that those errors were discovered before any such harm was done.

58. In relation to Particular 1a and 1b), the potential harm to patients caused by mislabelling samples for two different patients is that a patient with cancer might be given the all clear when they still had cancer, or a patient without cancer might be treated for a cancer which they did not have. As the mislabelling errors were picked up, further correctly labelled samples were taken, and the mistakes were rectified. It is the Panel’s view that although no actual harm was caused to the patients in question, the Registrant had clearly not taken the proper care when dealing with the samples. He refers in the Incident Reflective Practice Sheet to “rushing to get through as much work as possible due to low staff numbers and high backlog”.

59. The Panel heard evidence from AD which it accepted, that there was a backlog which would have been obvious to all BMSs working within the Histopathology Department at that time. However, the Panel also accepts that during the period whilst the Registrant was working as a locum BMS, AD had told him on a number of occasions to slow down. She had reassured him that they were interested in the quality of his work and not the quantity. The Panel accepts the evidence of JM that whilst locum staff have a tendency to rush through their work, permanent staff were trained not to do so. The Panel has concluded that the Registrant failed to heed the advice given to him to slow down and in doing so was putting patients at potential risk of harm.

60. In relation to Particular 2, the Panel is satisfied on the evidence of JM that it is standard practice for a BMS to count the number of blocks they are embedding against the relevant card. To have not done so, especially during an embedding competency assessment, indicates that the Registrant’s standard of practice in this area fell far below what would be expected. Had this not been picked up by JM, it could have caused harm to the patient(s) involved.

61. In relation to Particular 4, the Registrant’s error had the potential to cause harm to the patient. The loss of the sentinel lymph node tissue would have been detrimental to the patient’s diagnosis as it would not have been possible to know if there were micro metastasis in that specific lymph node. Fortunately, the consultant was able to report the case using a different sample. The Panel is satisfied that sectioning is a basic and fundamental part of a BMS role especially at a Band 6 level, and the Registrant should have been able to cut sections to the correct thickness. The Panel has considered the Registrant’s explanation for this error as set out in the Incident Reflective Practice Sheet where he stated, “It was perhaps my technique that led to a thicker section 1st that was discarded, and then the next one was better”. The Panel is of the view that this was not the first time that the Registrant’s sectioning technique had been called into question. He had been advised to slow down and to turn the handle on the microtome less vigorously prior to this. Although the Registrant was fully aware of this deficiency rather than correct it, he chose to alter the microtome setting in an attempt to compensate for this. The Panel has concluded that the Registrant’s conduct on this occasion fell far below the standards required of a Band 6 BMS.

62. In reaching its decision on misconduct, the Panel has had in mind the HCPC Standards of Conduct, Performance and Ethics (2016) and has concluded that the following standards are engaged and have been breached:

Standard 3 – Work within the limits of your knowledge and skills

Keep within your scope of practice

3.1 You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.

Standard 6 – Manage Risk

Identify and minimise risk

6.1 You must take all reasonable steps to reduce the risk of harm to service users, …..as far as possible.

6.2 You must not do anything….., which could put the health or safety of a service user, …at unacceptable risk.

The Panel also considers that Standard 1 in the Standards of Proficiency for Biomedical Scientists (December 2014) is engaged and has been breached.

Standard 1 – be able to practise safely and within their scope of practice

1.1   Know the limits of their practice and when to seek advice or refer to another professional

1.2   Recognise the need to manage their own workload and resources effectively and be able to practise accordingly.

63. The Panel takes the view that the Registrant knew that his skill at sectioning was deficient and whilst he has considerable experience as a BMS, it is clear that whilst working at the Trust, he continuously worked too fast and did not take the time, or the opportunities provided to him, to alter and perfect his sectioning technique, or effectively manage his workload.

64. The Panel has seen in the Registrant’s reflective pieces that he often refers to working too fast. The Panel considers that in continuing to work in this way, the Registrant did not take all reasonable steps to reduce the risk of harm to patients and thus put patients’ health at unacceptable risk.

65. The Registrant also did not always follow the Trust’s SOP’s and guidance which resulted in his making errors which put patients at risk of unwarranted harm. On occasion, the Registrant did not seek help when he should have done so, for example when cutting the sentinel lymph node.

Decision on Impairment

66. In reaching its decision on impairment, the Panel has considered the submissions of Mr Bridges for the HCPC and has had regard to the Registrant’s defence document, and to the HCPTS Practice Note “Finding that Fitness to Practise is Impaired”. It has received and accepted legal advice. The Panel has borne in mind that the purpose of this hearing is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. 18

Personal component

67. In relation to the personal component, the Panel has considered whether the Registrant’s misconduct has put patients at unwarranted risk of harm and whether, looking forward, the Registrant is liable to put patients at unwarranted risk of harm. In reaching its conclusion on these matters, the Panel has considered evidence of insight, remorse, reflection, and the likelihood of repetition of the misconduct involved in this case.

68. The Panel notes that the Registrant qualified as a BMS in 2008 and achieved the level of Specialist Practitioner in 2013. It also notes that prior to working for the Trust there appear to have been no clinical concerns regarding the Registrant’s clinical competence as a BMS in any of his previous positions. The Panel has seen testimonial evidence from practitioners at the two NHS Trust Hospitals where the Registrant worked after leaving the Trust, confirming that there were no clinical concerns with his work at that time. The Panel notes the Registrant’s comment that despite its concerns about his work, the Trust did not suspend him from his role as a Band 6 BMS after any of the errors in this case and allowed him to continue to work prior to his leaving on 30 November 2018.

69. The Panel has already indicated that it will not draw any adverse inference from the absence of the Registrant at this hearing. It has received and taken account of his detailed written submissions in which he explains why he is not attending. To his credit, the Registrant has largely engaged with these proceedings. However, the Panel takes the view that something went seriously wrong for this Registrant during his short time with the Trust. The Panel considers that the Registrant’s absence at this hearing has hampered somewhat its understanding of exactly why things did go so wrong during that period. The Panel is aware that the Registrant has a health condition but accepts his submission that this was not the cause of the problems that arose during that time.

70. The Panel notes that the Registrant was living some distance away from Hull and had to travel long distances each day. It considers that this could have added to the general strain the Registrant was experiencing at that time. The Panel has concluded that the Registrant has not yet provided a full explanation as to why he made the errors which have resulted in findings of misconduct.

71. The Panel is satisfied that the Registrant has shown some insight into his misconduct. At the relevant time, he accepted full responsibility for
his errors. He showed remorse at the time and has repeated his remorse since then. The Panel considers that while the Registrant has reflected on his misconduct in the various Incident Reflective Practice Sheets, these reflections are of only limited assistance. The format of these documents only requires the practitioner to fill in a small box with what the Panel considers is, inevitably, a superficial reflection. In his defence document, the Registrant describes all his “errors” as “honest mistakes” and it is clear that he has not yet properly reflected on each of these errors to the extent necessary to demonstrate to this Panel that he has developed full insight into his misconduct since leaving the Trust. The Panel takes the view that this lack of full reflection may be because it appears the Registrant has decided not to seek further employment as a registered BMS. The Panel does not consider the Registrant is incapable either of properly reflecting on his misconduct or that he could not achieve full insight into his shortcomings should he choose to do so in the future. However, at this stage, the Panel is not able to exclude the risk of repetition of the misconduct in this case.

72. In these circumstances, the Panel has concluded that the Registrant’s fitness to practise is impaired on the personal component.

Public component

73. In relation to the public component, the Panel is satisfied that, given the outstanding questions regarding why the Registrant made the errors in this case, together with level of seriousness of those errors, public confidence in the BMS profession would be undermined if there was no finding of impairment in this case. The Panel is also satisfied that it would be failing in its duty to declare and uphold proper standards of conduct and behaviour in that profession if it did not find impairment in this case. It considers that a reasonable and informed member of the public would be concerned if there was no finding of impairment in a case where a registrant’s misconduct had not only the potential to put patients at risk of unwarranted harm but had caused such harm.

74. The Panel, therefore, finds, on the public component, that the Registrant’s fitness to practise is impaired.

75. Accordingly, the Panel finds, on both the personal and public component grounds, that the Registrant’s fitness to practise is impaired and the Allegation is well founded.

Decision on Sanction

76. In considering the appropriate and proportionate sanction in this case the Panel has considered the guidance set out in the HCPC Sanctions Policy. The Panel has received and accepted legal advice. The Panel is aware that the purpose of any sanction it imposes is not to punish the Registrant, although it may have that effect, but it is to protect service users and to maintain confidence in the BMS profession and to uphold its standards of conduct and behaviour. It has also had in mind that any sanction it imposes must be appropriate and proportionate bearing in mind the misconduct involved.

77. The Panel has considered mitigating and aggravating factors. The Panel first looked at the mitigating factors. It notes that the Registrant provided a lengthy defence document for this hearing which was provided in good time and shows his engagement with this regulatory process. The Panel also notes that the Registrant admitted full responsibility for his misconduct not only at the relevant time but also in the early admissions he made in the pro-forma response and in his defence document. He has been remorseful from the outset. The Panel has already found that the Registrant has some insight. He recognised the potential impact that his errors may have had in the Incident Reflective Practice Sheets which he completed.

78. The Panel then looked at the aggravating factors and considers the actual and potential harm to patients to be an aggravating factor in this case.

79. The Panel has considered the available sanctions in ascending order of seriousness. It has decided that to take no action or to impose a Caution Order, in this case, would not be appropriate or proportionate given the seriousness of the misconduct concerned which involved not only the potential of harm to patients but direct harm caused to two patients. The misconduct was not an isolated incident and it could not be described as relatively minor. The Panel has been unable to find that there is no risk of repetition. This is not because it considers the Registrant to be incapable of safe practice. It is because the Panel has been unable to understand why the errors occurred during the Registrant’s period of permanent employment at the Trust in an otherwise unblemished career, both before and after that time. In these circumstances, the Panel considers that to protect the public and ensure that public confidence in the profession is not undermined, it must consider a more severe sanction.

80. The Panel has considered a Conditions of Practice Order and in particular, the matters set out in paragraph 106 of the Sanctions Policy which states: 21

“A conditions of practice order is likely to be appropriate in cases where:
• the registrant has insight;
• the failure or deficiency is capable of being remedied;
• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;
• the panel is confident the registrant will comply with the conditions;
• a reviewing panel will be able to determine whether or not those conditions have or are being met;
• the registrant does not pose a risk of harm by being in restricted practice”.

81. The Panel has concluded that the Registrant’s misconduct, in this case, it is capable of being corrected. It has also concluded that there are no persistent or general failures which would prevent the Registrant from remedying his misconduct. The Panel is reinforced in this view by the fact that there were no clinical issues regarding the Registrant’s practice in the many years before his employment at the Trust, nor in the four months after leaving the Trust when he worked at two different NHS Trusts. The Panel is satisfied that the Registrant would not pose a risk of harm in restricted practice. Although the Registrant has indicated that he no longer intends to practise as a BMS, the Panel is confident that were he to change his mind, he would comply with conditions imposed on his practice.

82. In these circumstances, the Panel considers that it is possible in this case to formulate conditions of practice which are appropriate, workable, realistic and verifiable and which would address the concerns raised in order to protect the public and the wider public interest. In reaching this decision, the Panel is aware that the Registrant has not practised as a BMS for over a year as he has been subject to an Interim Suspension Order since 15 April 2019. However, the Registrant’s clinical errors appear to have been limited to a short period of time when he was a permanent member of staff at the Trust. He is otherwise considered to be a good and competent BMS. The Panel takes the view that it is in the public interest to return competent practitioners to back to work and that the Registrant should be given the opportunity to reassure a reviewing panel that he will not repeat his errors and that he is safe to return to unrestricted practice.

83. The Panel has decided that 12 months is the appropriate and proportionate length for the Conditions of Practice Order it is imposing in this case. This period should provide the Registrant with sufficient time, should he wish to resume his career as a BMS, to obtain work and to demonstrate that he has learned from his errors and that there is no risk of his repeating them.

84. The Panel next considered a Suspension Order. It has taken account of the relevant paragraphs in the Sanctions Policy, including paragraph 121 which states:
“A suspension order is likely to be appropriate where there are serious concerns which cannot reasonably be addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register.

85. The Panel considers that a Suspension Order, in this case, would be disproportionate given that the Registrant has already been subject to an Interim Suspension Order imposed on 15 April 2019. It would also not allow the Registrant the opportunity to address the concerns which have been raised in this case. While the Panel does consider the misconduct involved in the case to be serious, it also considers it to be eminently capable of being remedied and there is no reason why this could not be achieved via a Conditions of Practice Order. The Panel considers that a Suspension Order would serve no purpose other than to punish the Registrant.

86. The Panel considers that a reviewing panel would be assisted by the following:
1. the Registrant’s attendance either in person or remotely at the review hearing;
2. a reflective piece on the misconduct found, which also explains why it occurred;
3. evidence of CPD activities undertaken.

ORDER: The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect (“the Operative Date”), you, Mr Jonathan Sheriff, must comply with the following conditions of practice:

1.    You must place yourself and remain under the supervision of a workplace supervisor of at least a Band 6 level who is registered by the HCPC, and supply details of your supervisor to the HCPC within 21 days of obtaining employment as a BMS in either a locum or permanent role.

2.    You must attend upon that workplace supervisor as required but no less than fortnightly to discuss your workload paying particular regard to the failures identified during this hearing, and you must follow their advice and recommendations.       

3.    Your workplace supervisor must provide a written report on your progress in remedying your failures to the HCPC 21 days prior to any review hearing.

4.    You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.

5.    You must inform the following parties that your registration is subject to these conditions:

A.    Any organisation or person employing or contracting with you to undertake professional work;
B.   Any agency you are registered with or apply to be registered with (at the time of application); and
C.   Any prospective employer (at the time of your application).

Application For An Interim Order

Mr Bridges for the HCPC applied for an Interim Order in this case and for the Panel to proceed in the absence of the Registrant as he had been put on notice of the possibility of this application in the Notice of hearing sent to him on 10 June 2020.

The Panel has decided to hear this application in the absence of the Registrant as it is satisfied that although he has been notified that it may be made, the Registrant has voluntarily absented himself from the whole of this hearing and has not taken the opportunity to join it at any time. The Panel has made a finding of impairment in this case on both personal and public components. In these circumstances, the Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. The Interim Conditions of Practice mirror those of the Conditions of Practice Order made by the Panel as follows:

1.    You must place yourself and remain under the supervision of a workplace supervisor of at least a Band 6 level who is registered by the HCPC, and supply details of your supervisor to the HCPC within 21 days of obtaining employment as a BMS in either a locum or permanent role.
2.    You must attend upon that workplace supervisor as required but no less than fortnightly to discuss your workload paying particular regard to the failures identified during this hearing, and you must follow their advice and recommendations.       
3.    Your workplace supervisor must provide a written report on your progress in remedying your failures to the HCPC 21 days prior to any review hearing.
4.    You must promptly inform the HCPC if you cease to be employed by your current employer or take up any other or further employment.
5.    You must inform the following parties that your registration is subject to these conditions:
A.    Any organisation or person employing or contracting with you to undertake professional work;
B.   Any agency you are registered with or apply to be registered with (at the time of application); and
C.   Any prospective employer (at the time of your application).
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.

The Conditions of Practice Order will be reviewed before its expiry. 

History of Hearings for Mr Jonathan Sheriff