Mr Aga J Hussain
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Whilst employed at Birmingham Women’s & Children’s Hospital, as a Biomedical Scientist:
1. You did not ensure adequate records were maintained in that:
a) you did not ensure that records of validation and/or verification for the Ready to Use (RTU) Antibodies which were in use for IHC tests in July 2017 had been created and/or appropriately stored; specifically for the following antibodies:
xi) CEA (Mono)
xiv) Cytokeratin 5
xxvi) Melan A
b) Between February 2016 and July 2017, you prepared and/or submitted a document which indicated that the following antibodies had been validated and/or verified and/or signed off for routine use by the Consultant Pathologist, when the appropriate records had not been completed/filed:
xii) CEA (Mono)
xv) Cytokeratin 5
xxvii) Melan A
c) Between June 2014 and July 2016 you did not ensure that Control Tissue Validation Records which you created and/or reviewed consistently contained:
i) the authorising signatures of the Senior Biomedical Scientist responsible for that section and/or Consultant Pathologist;
ii) the antibody references for the reagents used for the validation and/or verification of the control tissues;
iii) the Lot numbers and/or expiry dates for the reagents used in the validation process;
iv) a record of consent for use of the Post-Mortem (PM) tissue which was used as a Control on the following dates:
iv. 19 December 2015
v. 08 January 2016
vi. 10 January 2016; and
vii. 11 January 2016.
i) a record of which type of tissue used in the specimen
d) Between June 2014 and July 2016 you did not ensure that the Immunohistochemistry Reagent and Consumables Management Records which you completed and/or reviewed:
i) consistently contained a record of the date of the final use of batch;
ii) matched the inventory details from Leica Bond Autostainer for a number of UPI and/or Lot numbers, including but not limited to:
e) Between March 2014 and July 2017, you did not ensure antibody validation records were completed and/or appropriately stored which matched the inventory details from Leica Bond Autostainer for a number of reagents, including but not limited to the following UPI’s:
f) Between December 2015 and April 2016, you did not ensure the batch number of next batch in use was recorded on the Immunohistochemistry Reagent and Consumables Management Record, for the following batch numbers:
ii) 43824; and
g) Between June 2014 and July 2017 you did not ensure that the Immunohistochemistry Reagent and Consumables Management Record which you completed and/or reviewed consistently contained the authorising signatures of the Consultant Pathologist and/or Senior Biomedical Scientist responsible for that section.
2. You did not ensure that accurate records were maintained, in that:
a) Between February 2016 and July 2017, you:
i) created a document which stated that the Myoglobin Antibody worked when in fact this was not the case;
ii) entered the incorrect expiry date for the following antibodies on the Leica Bond machine:
i. CAM.52; and
iii) did not ensure the correct validation reference format was used on the Control Tissue Validation Record you completed and/or reviewed on the following dates, in that it stated “IHC” instead of “stain”:
i. 05 November 2015;
ii. 25 November 2015;
iii. 11 January 2016;
iv. 12 January 2016; and
v. 13 January 2016.
b) Between 13 December 2015 and July 2016, you did not ensure that the Immunohistochemistry Reagent and Consumables Management Record which you completed and/or reviewed had correct original control block and/or slide reference numbers for the following batch numbers:
vi) 45339; and
c) Between May 2016 and June 2016, you did not ensure the date of final use of batch was entered correctly on the Immunohistochemistry Reagent and Consumables Management Record, for the following batch numbers:
i) 45339; and
d) Between November 2015 and December 2016, you entered the Consultant’s signature on a number of Control Tissue Validation Records and/or Immunohistochemistry Reagent and Consumables Management Records;
3. Between February 2015 and September 2015, you allowed approximately 73 out of date antibodies to be placed and/or remain in the “In-Use” section of the immunohistochemistry fridge;
4. On or around 29 May 2016, you did not go through the details of the mortuary register when the midwife and/or parent(s) of a deceased baby made enquiries for his release;
5. Between February 2015 and July 2017, you did not ensure safe techniques were used, specifically in relation to:
a) Antibody CD34 that was used as a validated control, in that:
i) The tissue in validated slide did not match the tissue on the In-Use control slide;
ii) The In – use control slide was not labelled correctly with the validation reference number;
iii) There was no paperwork to support that this control had been validated;
iv) The Validation control slide was stained on 29 October 2015, and the In-use control slide was cut on 18 December 2016.
b) A perinatal post mortem tissue in that:
i) it was taken from the original cassettes and you did not ensure it was marked with case numbers and/or identifying information;
ii) you did not ensure the tissue could be linked to records to show where the tissue came from and/or whether the tissue was consented for use as a control.
c) Several slides which you allowed to be filed as validated and verified controls in 2017 when the slides had been stained in 2016;
d) Slides ref: IHC 15/002 which you allowed to be entered on the system as validated on 10 December 2015, however the date stained was 04 January 2016;
e) an out of date antibody, LCA, which you allowed to be re- validated on or around 20 July 2016.
6. Your action described in paragraphs 1(b), 2(a)(i), 2(a)(ii) and 2(d) was dishonest.
7. The matters set out in paragraphs 1 to 6 constitute misconduct and/or lack of competence.
8. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Application to amend Particulars of the Allegation
1. Mr Lloyd applied to amend Particular 2 i. from “CAM.52 to CAM 5.2 and to amend Particular 5 (a) (iv) from “18 December 2016” to 18 February 2016. He submitted that the amendments were necessary to correct typing errors and properly to reflect the evidence. Mr Hussain did not object to the proposed amendments and the Panel allowed the amendments to be made.
2. At the relevant time, the Registrant was employed by Birmingham Women’s and Children’s Hospital (BWC) as a Band 7 Senior Biomedical Scientist and Section Lead for Immunohistochemistry (IHS) / Special Stains. Following his resignation on 20 July 2017, Band 6 Biomedical Scientist AHG took over the Immunohistochemistry section of the laboratory. In familiarising herself with that section, AHG noted that a number of tissue blocks and documentation to confirm that processes had been followed was missing. A search of the laboratory raised significant concerns as further examples of errors were noted. This led to the laboratory manager referring the matter to the HCPC resulting in the allegations against the Registrant.
3. After the allegations had been read by the Hearings Officer, Mr Hussain admitted Particulars 3 and 4 and Particular 5 (b) (ii) which the Panel noted.
4. At the end of the evidence adduced on behalf of the HCPC, Mr Lloyd having discussed the matter with Mr Hussain and the Legal Assessor, informed the Panel that Mr Hussain would like it to consider whether the case should proceed in respect of Allegations 1(a), 1(b), 1(c), 2(a)(i) (ii) and (iii), 2 (d) and 5(e).
5. The Panel received and accepted the Legal Assessor’s advice that it should withdraw any Particular upon which no evidence had been presented or where the evidence was so vague or tenuous that it could not be proved. Where however, the proof of a Particular depended on a witness’s credibility or reliability, the Panel should not withdraw that Particular at this stage.
6. The Panel was satisfied that the evidence of the two live HCPC witnesses as well as the documentary evidence provided, was sufficient to support a case to answer in respect of each of the Particulars which the Panel had been asked to consider and refused the application to dismiss those Particulars at the half time stage.
Panel’s decision on Facts and Misconduct
7. Following a discussion between Mr Lloyd, Mr Hussain and the Legal Assessor, the Panel agreed, in order to assist Mr Hussain, that the hearing would proceed in two stages; facts and statutory ground and then, if appropriate, current impairment and sanction.
8. The Panel had regard to the oral evidence of two witnesses called on behalf of the HCPC. Witness TS was Mr Hussain’s line manager at the relevant time. Witness AHG was a band 5 Biomedical Scientist at the time that Mr Hussain worked at BWC and took over Mr Hussain’s role after he resigned in July 2017. The Panel also had regard to the agreed evidence of LH who was a Consultant Pathologist at BWC at the relevant time. The Panel carefully considered all of the documentary evidence contained within the HCPC bundle of witness statements and exhibits. It heard oral evidence from Mr Hussain.
9. In its assessment of the witnesses, the Panel found that the oral evidence of witness TS, Mr Hussain’s line manager was consistent with his witness statement and the documentary evidence. The Panel considered that witness TS’s evidence as to the underlying factual allegations could be trusted.
10. The Panel considered that witness AHG, Mr Hussain’s band 5 colleague, gave credible and consistent evidence and showed no signs of prejudice against Mr Hussain. The Panel was assisted by her evidence which it accepted. In respect of the agreed evidence of LH, the Panel was able to accord it sufficient weight.
11. In respect of the Registrant, Mr Hussain, the Panel considered that he had tried to help the Panel. Mr Hussain was consistent with what he said he could not remember. Whilst Mr Hussain positively shifted his position form a straightforward denial of all of the allegations at the outset of the hearing to an acceptance that he may have made mistakes due to being overworked and stressed, the Panel was satisfied that his evidence was honest and genuine.
Decision on Facts
Particular 1(a) - Proved in its entirety.
12. The Panel accepted the evidence of witnesses TS and AHG that necessary records of validation and/or verification for the several of the listed Ready to Use Antibodies had not been created and therefore had not been stored.
Particular 1(b) – Proved in its entirety.
13. The Panel accepted TS’s evidence that he had asked to Registrant to provide information for a spreadsheet, which, amongst other things, indicated by a “YES”, that the specified antibodies had been signed off by the Consultant Pathologist. The Panel relied upon the evidence of witness AHG who stated that she was unable to locate any records to support the validation or verification of the antibodies listed. It therefore found that the appropriate records had not been completed/filed.
14. In respect of the dishonesty Allegation in relation to this Particular, the Panel accepted that the Registrant’s genuine state of mind was to obtain the signature of the Consultant Pathologist at a convenient time. This was also his normal working practice at the time. Applying the objective test, the Panel did not consider that the Registrant’s conduct would be regarded as being dishonest.
Particular 1 (c) – Proved in respect of 1(c) (i), (iii) and (iv) and Not Proved in respect of 1(c) (ii) and 1 (c) (v).
15. The Panel carefully examined the relevant records and was satisfied that the Registrant had either created them or was responsible for reviewing them. The Panel regarded the word “consistently” in the Particular as meaning “ought to invariably have contained”. The records did not consistently contain the information particularised which are proved but did contain the information particularised in those which are not proved.
Particular 1(d) (i) and (ii) – Proved in its entirety.
16. The Panel relied on the relevant exhibits and the Registrant’s admission in his evidence that final use batch dates should have been consistently recorded and that a number of UPI and Lot numbers did not match the Leica Bond Autostainer details.
Particular 1 (e) – Proved in its entirety.
17. The Panel relied on the evidence of AHG who stated that she was unable to locate any Immunohistochemistry Reagent and Consumables Management Records that corresponded with the Lot numbers registered on the Bond machine.
Particular 1 (f) – Proved in its entirety.
18. The Panel relied on the exhibit in proving this Particular.
Particular 1(g) – Proved.
19. The Panel regarded the word “consistently” in the charge as meaning that the records ought to invariably have contained the Consultant Pathologist and/or Senior Biomedical Scientist’s signature, which they did not.
Particular 2(a)(i) – Not Proved and dishonesty not proved.
20. The Panel noted the oral evidence of AHG that it was perfectly possible for any particular antibody to work at one time and then not work at another. The Panel was not satisfied that it had been proved that when the document was created, the antibody was not working.
Particular 2 (a) (ii) – Proved in its entirety and dishonesty not proved.
21. The Panel noted that in respect the two particularised antibodies, incorrect expiry dates had been entered on the Leica Bond machine. The Panel was also satisfied on a balance of probabilities that the Registrant had entered those incorrect dates.
22. In respect of the dishonesty allegation for this Particular, the Panel accepted that this resulted from error and was not deliberate. Accordingly, it would not be regarded as being dishonest.
Particular 2(a)(iii) – Proved in its entirety.
23. Mr Hussain, in his oral evidence admitted this Particular in that he did not ensure that the correct validation reference format was used. The relevant exhibit also confirms that he used “IHC” rather than “stains” on the dates alleged.
Particular 2(b) – Proved save for (iv) which is not proved.
24. The relevant exhibit demonstrates that this Particular is made out except that the correct details had been entered in respect of 2(b)(iv).
Particular 2 (c) (i) – Proved.
25. The relevant exhibit clearly demonstrates that the wrong date was recorded in respect of 2 (c) (i).
Particular 2 (c) (ii) - Not Proved.
26. The date of the relevant exhibit does not correspond to the date set out in the Particular.
Particular 2 (d) – Not Proved and dishonesty not proved.
27. The Panel had regard to LH’s agreed evidence that her purported signature on numerous record forms had been forged. The Panelcarefully considered the HCPC case that the Registrant had forged LH’s signature on those forms. The Panel noted that there was no corroborating evidence in the form of eyewitness, CCTV or handwriting expert evidence. It noted that the Registrant vehemently denied that he had forged the Consultant’s signature on those documents.
28. The Panel concluded that whilst the circumstantial evidence may raise a suspicion that the Registrant had forged LH’s signature, the HCPC had failed to prove this Particular on a balance of probabilities. The Panel considered that it was inherently unlikely that the Registrant, who had completed many other of these forms leaving the Consultant’s signature blank to be signed sometime later, would have behaved in the manner alleged. Accordingly, it found this particular to be not proved and the dishonesty allegation falls away.
Particular 3 – Proved.
29. The Panel relied on the Registrant’s admission to this Particular and to the reliable evidence of witnesses TS and AHG.
Particular 4 – Proved.
30. The Panel relied on the Registrant’s admission to this Particular and to the reliable evidence of witnesses TS and AHG.
Particular 5 (a) – Not Proved in its entirety
31. The Panel found that on the limited material provided to support this Particular, it had not been proved to the required standard.
Particular 5(b) (i) and (ii) – Proved
32. The Panel relied on the photographs of the cassettes and case numbers and to the Registrant’s admission in his oral evidence to Particular 5 (b) (ii).
Particular 5(c) Not Proved
33. The nature of the evidence provided was insufficient to prove this Particular.
Particular 5(d) Not Proved
34. The nature of the evidence provided was insufficient to prove this Particular.
Particular 5(e) Proved
35. The relevant exhibit demonstrates that this Particular is made out.
Particular 6 Not Proved
36. Dishonesty is not proved for the reasons given above in the relevant Particulars.
37. The Panel considered whether the facts found proved amounted to either a lack of competence or misconduct.
38. The Panel had regard to Mr Hussain’s seniority and length of experience as a qualified Biomedical Scientist. It also took into account TS’s evidence that Mr Hussain is a highly competent and knowledgeable Biomedical Scientist whose knowledge of the technical aspects of the role is sound.
39. In all of the circumstances, the Panel concluded that Mr Hussain did not lack competence as a Biomedical Scientist. He knew what he had to do and how to do things properly. For these reasons, the Panel concluded that a finding of lack of competence was not appropriate in this case.
40. In considering whether the proved facts amounted to misconduct, the Panel found that the facts found proved involve numerous instances of deficient record keeping, failing to use safe techniques and an attitudinal failing. The Registrant has been in breach of the required HCPC Standards of Conduct Performance and Ethics in place during the relevant periods.
41. Whilst some of the Registrant’s failings could be regarded as minor, the Panel was satisfied that cumulatively, the matters found proved represented fundamental failings as a Band 7 Biomedical Scientist which would be regarded as deplorable by fellow professionals given his experience and the responsibility of his IHS lead role. Further, the Panel considered that the public would be very concerned at the extent of the matters found proved and would expect a finding of misconduct.
42. The Panel was satisfied that overall, the Registrant’s conduct fell far below the required standards. It concluded that misconduct was established.
Decision on Impairment
43. The Panel took account of the submissions of the HCPC and the Registrant and accepted the advice of the Legal Assessor. It had regard to the HCPTS Practice Note on Finding that Fitness to Practise is impaired. It considered both the personal and public components of impairment.
44. The Panel had regard to its findings of fact and misconduct. The Panel reminded itself that the misconduct involved fundamental aspects of practice as a Biomedical Scientist, including record keeping, compliance with statutory, regulatory and consent requirements and adhering to relevant ISO 15189:2021 UK Accreditation Services Standards. The Panel’s findings also involved attitudinal failings.
45. In the Panel’s view, the Registrant’s standard of record keeping was a fundamental failing for a Band 7 Biomedical Scientist. It involved his failure to create or appropriately store validation and verification records in respect of some 40 antibodies, failing to ensure that Control Tissue Validation Records were consistently authorised or correctly numbered, as well as failing consistently to ensure that IHC Reagent and Consumable Management Records were completed accurately.
46. Further, the Registrant had dealt with post-mortem tissue in ways which would cause grave concern, such as not ensuring that the tissue could be properly identified or that its use was properly consented.
47. The Panel had regard to the Registrant’s submissions at the impairment stage. The Panel considered that the Registrant, whilst accepting of the Panel’s findings, displayed a real lack of any understanding as to the potential harm to patients, the seriousness of his misconduct and the damage to the reputation to his profession caused by his misconduct.
48. It was clear to the Panel that the Registrant was not aware of or had failed to keep himself up to date with developments in practising safely as a Biomedical Scientist in compliance with Standard Operating Procedures [SOPs] and regulatory requirements. Of particular concern to the Panel was the Registrant’s ignorance of SOPs in relation to post-mortem tissue use and the requirements of the Human Tissue Act 2004.
49. The Registrant told the Panel, in his submissions, that since resigning in July 2017, he had not worked as a Biomedical Scientist. Nor had he completed any CPD, notwithstanding his stated desire to remain on the HCPC register. Although he also told the Panel that he realised the seriousness of the matters found proved, the Registrant continued to maintain that his misconduct came about because of the pressure put on him by his line manager and the volume of his work.
50. The Panel was of the view that the Registrant had been unable consistently to fulfil the role of a Band 7 Biomedical Scientist over a period of several years. The Panel found that the Registrant lacked any real insight as to the seriousness of his misconduct and had failed to embark on any remediation. In the Panel’s view, the Registrant could have provided some evidence of re-training or further education into record keeping and regulatory/statutory compliance and has chosen not to do so, even though some 4 years has now passed since his resignation.
51. Given the lack of any evidence of meaningful insight, reflection or remediation, the panel concluded that there is a continuing risk of repetition. There was also a lack of any remorse apart from the Registrant stating, “I wish this thing wouldn’t have happened”. The Panel was satisfied that the Registrant’s fitness to practise is impaired on the personal ground of impairment. The Panel also concluded that the Registrant’s fitness to practise is impaired on the public ground of impairment given the wide-ranging nature of the misconduct, the damage to the reputation of his profession and the need to uphold proper standards.
Decision on Sanction
52. The Panel considered the submissions made by Mr Lloyd on behalf of the HCPC and those of the Registrant. Mr Lloyd referred the Panel to the Sanctions Guidance. The Registrant submitted that he wished to remain on the Register for his own, “dignity, pride and respect”. The Panel received and accepted the advice of the Legal Assessor.
53. The Panel was mindful that the purpose of any sanction is not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour and to serve as a deterrent in relation to such behaviour.
54. The Panel had regard to the Sanctions Policy [March 2019]. 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 seriousness.
55. The Panel first considered the aggravating factors in this case. The Panel noted that the wide-ranging and fundamental nature of the Registrant’s misconduct occurred repeatedly over a prolonged four-year period. Further, the nature of the misconduct was very serious such as failures to obtain proper authorisations/verifications and failing to ensure consent had been obtained regarding the use of post-mortem tissue. There were also serious failures regarding the proper identification of post-mortem tissue.
56. A further aggravating factor is that the Registrant had received a warning from a manager in 2015 concerning the storage of expired antibodies and his conduct set out in Particular 4. The Registrant told the Panel that he had undertaken further training and was extra careful following receipt of that warning. However, the Registrant’s misconduct continued for two years thereafter.
57. As mitigating factors, the Panel took into account the lack of disciplinary action prior to 2015 and his limited admissions to these allegations. The Panel also had regard to the Registrant’s evidence as to how he had been pressured and side-lined, in his opinion. Whilst the Panel accepted that this was how the Registrant felt, it considered that the Registrant, as a Band 7, should have had regard to his own responsibilities and raised appropriate concerns, and grievances, if appropriate, to ensure standards were maintained. For these reasons, the Panel was not able to regard the Registrant’s circumstances at work as a mitigating factor.
58. In determining the appropriate and proportionate sanction, the Panel had regard to its findings of fact. Having found that the Registrant’s fitness to practise is currently impaired due to misconduct, the Panel considered that it would be inappropriate to take no action or refer the matter to mediation. Nor would it be appropriate to impose a Caution Order which can be imposed for minor, isolated matters and where there is sufficient insight and remediation.
59. The Panel next considered whether a Conditions of Practice Order was appropriate and proportionate. The Panel, however, was of the view that the Registrant’s misconduct was so embedded, fundamental and wide-ranging that the public would only be protected if the Conditions of Practice was that the Registrant undertake and complete an Institute of Biomedical Science, Certificate of Competence Portfolio. This would involve the Registrant being accepted into a laboratory for approximately 12 months, being closely supervised and assessed on all the required competencies.
60. The Panel was mindful that Conditions of Practice have to be workable, practical, enforceable and verifiable. The Panel considered that it was highly unlikely that the Registrant, given the extent of his misconduct, his attitudinal failings and the stage at which he is at in his career, would be able or willing to undertake the Certificate of Competence Portfolio and that such a Conditions of Practice order would be tantamount to a suspension. Accordingly, the Panel concluded that Conditions of Practice are not workable, or proportionate to the Registrant, in this case.
61. The Panel next considered a Suspension Order which is likely to be appropriate where there are serious concerns which cannot be reasonable addressed by a Conditions of Practice Order but which do not require the Registrant to be struck of the Register or where a strike off is not an available sanction as in this case.
62. The Panel accepted that the public would be protected during any period of suspension. However, the Panel also considered that a suspension would not achieve remediation, given the Registrant’s lack of insight and his failure to take any reflective/remediation steps henceforth. The Panel also noted that the Registrant wishes to continue his retirement and has no desire to work as Biomedical Scientist again.
63. The Panel carefully considered the Sanctions Guidance in relation to a strike off order and noted that it is a sanction of last resort where a lesser sanction would not be appropriate or proportionate. A Striking Off Order will be appropriate where no other sanction is proportionate, there is a lack of insight and the misconduct has continued over a long period of time with no remediation. The Panel concluded that, in the circumstances of this case, the only proportionate sanction is a striking off order.
The Registrar is directed to strike the name of Mr Aga J Hussain from the Register on the day this order comes into effect.
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.
Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.
1. The Panel heard submissions from Mr Lloyd on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress.
The Panel’s Decision
2. The Panel is of the view that, given the nature and seriousness of the misconduct in this case, public confidence in the regulatory process would be undermined if the Registrant were allowed to practice on an unrestricted basis during any appeal period. The Panel therefore determined that an Interim Order is otherwise in the public interest. The Panel first considered whether an Interim Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that interim conditions would not be appropriate or proportionate in this case.
3. The Panel therefore decided to make an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being 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.
History of Hearings for Mr Aga J Hussain
|Date||Panel||Hearing type||Outcomes / Status|
|06/04/2021||Conduct and Competence Committee||Final Hearing||Struck off|