Mr Chima Kenneth Njemanze

Profession: Biomedical scientist

Registration Number: BS58867

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 25/02/2021 End: 17:00 26/02/2021

Location: This hearing will take place virtually

Panel: Conduct and Competence Committee
Outcome: Suspended

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

While registered as a Biomedical Scientist with the Health and Care Professions Council and whilst employed by Bolton NHS Foundation Trust, you:

1. On 17 December 2018;

a. Added additional tests to a sample for Patient A, when it was inappropriate to do so.

b. Deleted the additional tests, in order to disguise that you had requested said tests.

2. Your actions set out in paragraph 1 amount to dishonesty.

3. Your actions set out in paragraphs 1 – 2 amount to misconduct.

4. By reason of that misconduct, your fitness to practise is impaired

 

Finding

Preliminary Matters
1. Ms Constantine made an application to amend some minor typographical errors to the particulars of allegation. Ms Johnson made no objection to the application, which the Panel accordingly granted.

2. Ms Johnson made an application for the entire hearing to take place in private on the grounds that a central feature of the case related to the health of the Registrant’s wife. Ms Constantine submitted that she could open the case without reference to the health of the Registrant’s wife but that for practical purposes it might be more convenient for the entire hearing to take place in private. The Panel took into account the advice of the Legal Assessor, who reminded the Panel of Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee (Procedure) Rules 2003. The Panel decided that the hearing should proceed in public but that the public would be excluded from any part of the hearing which related to the health of the Registrant’s wife.

Background
3. The Registrant is registered with the HCPC as a Biomedical Scientist. He was employed in that capacity by Bolton NHS Trust (“the Trust”) from 7 July 2008 until 24 December 2018.

4. On 18 December 2018, Colleague A, a Biomedical Scientist employed by the Trust, raised a concern that on 17 December 2018, during a late shift, the Registrant had accessed the “CITM” laboratory system and added a number of tests to a sample that was labelled with his surname and address. It is alleged that this sample belonged to the Registrant’s wife, Patient A. Analysis of the records showed that tests had been added, viewed and deleted using the Registrant’s log-in details. The additional tests requested were unrelated to the GP’s original referral and were therefore in breach of Trust policy.

5. The Registrant tendered his resignation on 24 December 2018. A referral was made to the HCPC on 8 February 2019, resulting in these proceedings.

The evidence
6. The HCPC presented a bundle of documents to the Panel comprising:
(a) the witness statement of Colleague A dated 30 January 2020
(b) the witness statement dated 8 January 2020 of MD who carried out an investigation report dated 10 May 2019 on behalf of the Trust. JC exhibited her report together with a number of supporting documents.

7. Colleague A and MD gave oral evidence by video-link to the Panel.

8. The Registrant also provided the Panel with a bundle of documents comprising:
(a) his own witness statement together with various documents on which he relied
(b) a witness statement by Patient A dated 23 October 2020
(c) a witness statement dated 26 October 2020 of AM, a Biomedical Scientist who worked with the Registrant at the Trust from May 2013 until October 2018
(d) a witness statement of JR, a solicitor-advocate at Blackfords LLP (the Registrant’s solicitors) who exhibited an unsigned and undated witness statement, which she had drafted after speaking to TL on 20 October 2020. TL was a former work colleague of the Registrant at the Trust

9. The Registrant and Patient A gave oral evidence by video-link to the Panel. The statements of AM, JR and TL were read into the record as their attendance was not required by the HCPC or the Panel.

Burden and standard of proof
10. The Panel was mindful that the burden of proof is on the HCPC and that the civil standard of proof applies, so the particulars of the allegation must be proved on the balance of probabilities.

The witnesses
Colleague A
11. Colleague A gave evidence that she had been employed as a Specialist Biomedical Scientist for the Trust since 2013, during which time she had worked frequently with the Registrant. She described their relationship as professional and without personal issues.

12. Colleague A stated that there were two systems in the laboratory: “Lab Centre” and “CITM”. Lab Centre was the primary computer system, sitting between the laboratory and the rest of the hospital. When a blood sample was sent to the laboratory, it was booked onto the system using Lab Centre. Lab Centre then sent the request automatically to CITM. CITM would then send the sample to an analyser, which processed the blood sample and gave the test result. CITM would send most test results through to Lab Centre automatically. However, CITM was programmed to hold back some test results for validation, for biomedical scientists to look at to ensure that the analyser was working correctly. It was possible to operate CITM “offline”, i.e. manually, for example if an evaluation or sample integrity test was required which did not need to be recorded on Lab Centre. Offline testing was routinely undertaken by Colleague A and the Registrant and was part of their remit to add tests as healthcare professionals where justified, for example, to check for cross contamination of sample tubes.

13. Colleague A stated that on 17 December 2018 she and the Registrant were both working on the late shift between 12.30 pm and 9.00 pm and were the only biomedical scientists on duty in the laboratory.

14. Colleague A stated that she was going through the validation tests on CITM and saw that some tests requested had been held back and that the test results were positive. She noticed that the name of the patient corresponded with that of the Registrant and she believed that the patient was the Registrant’s partner, i.e. Patient A. Colleague A went into Lab Centre to check the original request for tests and noticed that these additional tests had not been requested by a clinician. These additional tests were not the type of tests which a biomedical scientist could add without being requested by a clinician. Colleague A stated that neither she nor the Registrant would be permitted to add these additional tests unless they had been asked to do so by consultants in microbiology or other clinical staff.

15. Colleague A stated that she looked at the audit trail on CITM. She noted that the additional tests had been added on CITM and were not part of the original tests requested via Lab Centre. Colleague A stated that, when looking at an audit trail, CITM logged everything included the time when tests had been added and the name of the user who had added the additional tests. She stated that the Registrant’s name had been logged against the additional tests. She also noted that the results appeared to have been deleted from CITM, which would remove all trace of the tests to the casual observer.

16. Colleague A stated that the addition and subsequent deletion of these tests did not appear to be in accordance with correct procedures and raised ethical concerns. She therefore referred the matter to her manager.

17. Colleague A stated that the laboratory dealt with a minimum of one thousand samples a day and most of these came during the late shift. The system was heavily automated and there would be no real reason to look at patient details unless trying to find an urgent sample, for example, for A&E. It was therefore extremely unlikely that someone working in the laboratory would notice a sample of someone they knew by name.

18. Colleague A stated that there were separate log ins for the two systems and that every employee had a unique log in for each system. She stated that she was unaware of anyone else’s log in details. She stated that the passwords timed out regularly and required changing. She stated that initially there had been generic passwords, which users were supposed to change immediately. However, there was nothing within the CITM software which prevented a user from continuing to use a generic password.

19. The Panel considered Colleague A to be an honest and reliable witness. Her oral evidence was consistent with her witness statement. She acknowledged when she was unable to remember something and declined to speculate outside her recollection of the facts. The Panel found her evidence to be entirely credible.

20. MD gave evidence in relation to her investigation report. Her evidence was well presented and clear. However, it did not touch on the essential issues of credibility which the Panel had to determine.

21. The Registrant denied the allegations. In his witness statement, he stated that between 18:59 and 20:45 he was dealing with handling samples and was not working in the area of the laboratory where the CITM and Lab Centre computers were situated. He stated that Colleague A was working on the computers, validating and releasing results and checking samples which he passed on to her.

22. The Registrant denied requesting and deleting additional tests in relation to Patient A’s sample. He stated that there was no possible reason for him to do so, as he had been well aware of her health condition since it had been diagnosed in 2016, as evidenced by a letter dated 2016 in relation to the result of tests carried out on him and Patient A.

23. The Registrant stated that Patient A’s health condition was known to his colleagues at the laboratory because she had been regularly referred to the laboratory for tests by her GP.

24. He stated that at some stage during the shift on 17 December 2018 Colleague A had asked him if his wife (Patient A) came to the hospital, to which the Registrant said yes.

25. He stated that he used a generic password to access CITM having previously tried unsuccessfully to change his password. He suggested, without naming Colleague A, that a colleague could have used his log in details to access the computers.

26. In his oral evidence, the Registrant’s account changed in a number of material respects. He admitted under-cross examination that he was aware that Patient A’s sample was received at the laboratory for tests on 17 December 2018. He agreed that he had accessed the Lab Centre system on 5 occasions to check on Patient A’s test results. This was inconsistent with his earlier evidence that he had not accessed the computer systems at the relevant times.

27. The Registrant also for the first time claimed that Colleague A “said a lot about me and my family and was obsessed”. The Panel inferred that the Registrant sought thereby to insinuate that Colleague A might have been motivated to request additional tests in relation to Patient A’s sample.

28. The Panel found Registrant’s evidence to be inconsistent and unreliable.

29. There was no challenge to the evidence of Patient A or to the statements of AM of JR but the Panel did not find any of the evidence assisted in determining the allegations. The Panel could place no reliance on the statement of TL, which was unsigned and undated.

Decision on Facts
30. The Panel found particulars 1(a) and 1(b) proved for the following reasons:
(i) The Registrant admitted that he knew that Patient A’s sample had been received by the laboratory that day for testing
(ii) The Registrant admitted that he had accessed the Lab Centre system on 5 occasions during the shift to check on Patient A’s test results. The Panel thereby inferred that, for whatever reason, he was preoccupied with establishing her health condition
(iii) The log in details of the person who requested the additional tests were those of the Registrant
(iv) The Panel accepted Colleague A’s evidence that she had no knowledge that Patient A’s test results were coming into the laboratory, and that she knew nothing of Patient’s diagnosis. The Panel also accepted her evidence that she was unaware of the Registrant’s log in details

31. In relation to particular 1 (a), the Panel was satisfied on the balance of probabilities that the Registrant added additional tests to a sample for Patient A and that it was inappropriate to do so. Accordingly particular 1(a) is proved.

32. In relation to particular 1(b) the Panel is satisfied on the balance of probabilities that the Registrant deleted the additional tests in order to disguise that he had requested them. Accordingly particular 1(b) is proved.

33. With regard to particular 2, the Panel noted the Trust’s Data Protection Policy, which at paragraph 11.2 reminded employees that “It is a criminal offence under the General Data Protection Regulation and Data Protection Act 2018 for a person to “knowingly ... without the consent of the data controller (to) obtain… personal data or the information contained in personal data … without the consent of those who control the data.” The Registrant was an experienced Biomedical Scientist who had been employed by the Trust since 2009. He was plainly aware that his actions were in breach of the Trust policy and unlawful. The Panel considered that by the standards of ordinary, decent people, the Registrant’s conduct was dishonest. Accordingly particular 2 is proved.

Decision on Grounds
34. The Panel went on to consider whether the facts found proved, or any of them, amounted to misconduct, as alleged in particular 3.

35. The Panel took into account the submissions of Ms Constantine and Ms Johnson and accepted the advice of the Legal Assessor.

36. The Panel was mindful that this was a matter for the Panel’s professional judgement, there being no standard or burden of proof.

37. The Panel took into account that misconduct was defined in Roylance v General Medical Council (no 2) [2001] 1 AC 311 as:

“a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a (medical) practitioner in the particular circumstances”.
38. It is clear from case law that the conduct must be sufficiently serious that it can be properly described as misconduct going to fitness to practise.

39. The facts found proved involved dishonest conduct by the Registrant in accessing sensitive personal information of Patient A and subsequently deleting it to avoid detection.

40. The Panel found the Registrant to be in breach of the following of the HCPC Standards of Conduct, Performance, and Ethics (2018):

• Standard 1.1 (You must treat service users … as individuals, respecting their privacy and dignity)

• Standard 5.1 (Respect confidentiality) and

• Standard 9 (Be honest and trustworthy)

41. The Panel also found the Registrant to be in breach of Standard 3.1 of the HCPC Standards of Proficiency for Biomedical Scientists, which requires a registrant to understand the need to maintain high standarsd of personal and professional conduct.

42. Taken together, and individually, the proven particulars amounted to misconduct as constituting a serious falling short of what would be proper in the circumstances.


Application for an adjournment

26 November 2020

43. The Panel found the particulars of allegation proved on 25 November 2020, following which the Hearings Officer emailed the Panel’s decision to the parties.

44. At the outset of the hearing on 26 November 2020, Ms Johnson applied for an adjournment on behalf of the Registrant. Ms Johnson informed the Panel that the Registrant had suffered from an adverse reaction upon reading the Panel’s decision, which affected his health and prevented him from giving instructions in relation to the issue of impairment or attending the hearing on that day. She informed the Panel that the Registrant was seeking an urgent medical appointment. She therefore applied for an adjournment until 9.30 am on 27 November 2020. That application was not opposed by Ms Constantine and was granted by the Panel.

27 November 2020

45. At the outset of the hearing on 27 November 2020, Ms Johnson informed the Panel that the Registrant was still not fit to attend the hearing or to give her further instructions. She informed the Panel that the Registrant had suffered a recurrence of a medical condition which had occurred in January 2019, which had led to his being off work for one month. The Panel was provided with copies of prescriptions for medications which the Registrant had been prescribed on 3 January 2019 and for which he had now received repeat prescriptions.

46. Ms Constantine did not oppose the application for an adjournment. The Panel took into account the HCPTS Practice Note on Postponement and Adjournment of Proceedings and accepted the advice of the Legal Assessor.

47. The Panel determined that, in fairness to the Registrant and in the interests of justice, the application for an adjournment should be granted.

48. The Panel indicated that it would be helpful if the Registrant were to provide a witness statement in relation to any matters which he would wish the Panel to take into account in advance of the next hearing date. Also the Panel, before the next hearing, expected the Representative to provide the medical evidence from the GP, stating that the Registrant was not fit to attend the hearing on 27 November 2020.


25 February 2021

50. The substantive hearing having been adjourned on 27 November 2020 in the circumstances described above, it recommenced on 25 February 2021. The Registrant appeared by video and continued to be represented by Ms Johnson. On this occasion Mr Foxsmith was the Presenting Officer.

Decision on Impairment
51. As the Panel found in November 2020 that the facts were proven and that they amounted to misconduct, the first issue to be decided at the reconvened hearing was whether the established misconduct is currently impairing the Registrant’s fitness to practise.

52. In advance of the hearing the Panel was provided with a document entitled “Reflective Piece” dated 20 February 2021 prepared by the Registrant. He also provided certificates confirming participation in CPD activity in General Data Protection Regulations (“GDPR”) and Information Governance, Record Keeping and Caldicott Protocols on 8 December 2020 and Probity and Ethics on 16 January 2021. During the hearing the Panel has asked to have regard, and did consider, written testimonials provided in support of the Registrant.

53. On behalf of the HCPC, the Presenting Officer made submissions as to the factors the Panel should consider when making this decision. He acknowledged that the Registrant had submitted his reflective piece, but pointed out that the value of that document had to be considered in the light of the fact that, while he accepted the Panel’s findings, the Registrant still did not accept that he had acted as he had been found to have done. It was submitted on behalf of the HCPC that the Registrant’s fitness to practise is impaired in relation to both the personal and public components.

54. On behalf of the Registrant, Ms Johnson invited the Panel to find that there was no continuing impairment of fitness to practise in relation to either component. Included in the factors advanced in support of this submission were the following:

• the allegations concerned the records of the Registrant’s wife, and her alone;
• the allegations therefore arose in very particular circumstances and should not be found to have wider professional repercussions;
• the Registrant’s wife did not complain of his actions;
• there was no risk of harm;
• the passage of time since the actions occurred;
• the steps taken by the Registrant to address relevant issues;
• as a consequence of the foregoing, it was submitted that there was no appreciable risk of repetition.

55. The Panel accepted the advice it received as to the proper approach to the issues to be decided, and it paid close attention to the HCPTS Practice Note on the topic. Consistent with this advice the Panel considered separately the personal component and public component relevant to impairment of fitness to practise.

56. The Panel considers that it is necessary to reiterate what its findings were. This was not simply a question of a health professional inappropriately accessing confidential records. Had it been only a matter of inappropriate accessing such records, then unfamiliarity with, or adopting a lax attitude towards, data protection requirements would be a less serious matter, and one which could be remedied by attendance on relevant courses. In this case the findings involve the Registrant not only inappropriately accessing records, but adding further tests to be undertaken, and then dishonestly falsifying the record kept on the system in an attempt to hide what he had done. These are far more serious matters than can be addressed by attendance on remedial courses, because it is absolutely central to the understanding of biomedical scientists that they abide by the limits of their scope of practice and cannot determine what tests should be undertaken on patients. The Panel has no doubt that the Registrant understood that to be the case. Furthermore, biomedical scientists understand that it is grossly improper to alter records and seek to hide the actions they have taken on computer systems.

57. It is also necessary for the Panel to explain its finding in relation to the Registrant’s present level of acceptance. In his recently prepared reflective piece, the Registrant has stated that he accepts the Panel’s finding, but it is clear that he continues to deny that he behaved in the manner the Panel has found he did. Taking all the relevant evidence together, the Panel has concluded that at the time of the incident the Registrant decided that he would act as he determined, as opposed to how he knew his professional responsibilities should have dictated. Since the incident occurred, the Registrant has consistently denied culpability. Therefore the Panel has concluded that the Registrant’s present position is such that there can be no confidence that he would behave differently in the future.

58. Applying these findings to the personal component, the Panel found that his fitness to practise is still impaired. The Panel accepts that the incident arose in relation to the Registrant’s wife undergoing investigations. However, his subsequent actions and attempt to conceal what he had done give rise to significant questions about the Registrant’s willingness to abide by the ethical standards relating to scope of practice, honesty and integrity. The Panel is satisfied that the Registrant was fully aware of his professional obligations in this regard. It follows that if circumstances were to arise in the future where his personal interests conflicted with his professional responsibilities, the Panel was not reassured that the latter would prevail.

59. It is central to the expectation of members of the public that they should have complete confidence in the reliability and integrity of biomedical scientists given the nature of the work that they do. Accordingly, the public would have real concerns about a health professional being permitted to continue to practise without restriction, when that practitioner not only undertook the actions the Panel has been found to have performed but has failed to accept responsibility for performing them. For this reason, the Registrant’s fitness to practise continues to be impaired from the point of view of the public component.

60. The consequence of the finding that there is current impairment of fitness to practise is that the Panel must proceed to consider the issue of sanction.


Decisoin on Sanction

61. After the Panel handed down its decision on current impairment of fitness to practise it allowed the parties time to consider that decision before receiving their submissions on sanction.

62. On behalf of the HCPC, the Presenting Officer made submissions as to the proper approach to the decision the Panel was required to make in relation to sanction. He identified some mitigating and aggravating factors. He also urged the Panel to have regard to the HCPC’s Sanctions Policy, drawing attention to the fact that in that document dishonesty is dealt with under the wider heading of “Serious cases”. The Presenting Officer did not, however, contend that the Panel should apply any particular sanction. On the contrary, he submitted that the appropriate sanction was one for the Panel’s discretion.

63. On behalf of the Registrant, Ms Johnson submitted that established authority made clear that a finding of dishonesty did not necessarily have the consequence that a Panel should adopt a sanction at the top end of the sanction scale, and she also submitted that a lack of insight should not automatically be treated as the same as an absence of remorse. She referred to the incident being out of character, and not only was there an absence of previous findings against the Registrant, but positive testimonial evidence in his favour. Ms Johnson also submitted that although the Registrant still denied that he had acted as the Panel found he did, nevertheless he had taken steps to ensure that he could be trusted in the future. In addition to these factors, Ms Johnson also submitted that the adverse consequences suffered by the Registrant as a result of the incident would ensure that he would not breach proper standards again. While acknowledging that conditions of practice might not be a frequently imposed sanction following a finding of dishonesty, she submitted that in the present case it should be considered by the Panel. She proposed conditions designed to prevent a repetition, such as supervision, specific training, restrictions on the information the Registrant should be permitted to access, and also a condition prohibiting lone working. If the Panel did not consider that conditions of practice would be appropriate, then, although she submitted that suspension was not required, she urged the Panel to impose no more restrictive sanction than a short period of suspension.

64. The Panel accepted the advice it received that a sanction should not be imposed to punish a registrant against whom a finding has been made. Factors that should determine whether a sanction should be imposed included the need to protect service users, the importance of deterring other practitioners who might otherwise feel tempted to breach proper professional standards, and to reassure the public of the integrity of health professionals. A finding that an allegation is well founded does not necessarily require the imposition of a sanction. If a sanction is required, then the available sanctions must be considered in an ascending order of seriousness.

65. The fundamental factor that results in this being a serious case is that the Registrant acted deliberately, knowing this was a breach of duty by not only accessing confidential records and adding extra tests to be undertaken when he had no authority to do so, but also attempting to disguise his actions. This was dishonest behaviour that represented a breach of trust. Although the Registrant has continued to deny the allegations found proved, the Panel is clear as to the significance of this continuing denial for sanction purposes. The Panel does not elevate that factor into an additional allegation deserving of the imposition of a sanction; but the absence of acceptance of wrongdoing does have the result that the impact of the dishonesty that did feature in the Panel’s findings of facts remains significant. This is because without acceptance of the basis of the finding there can be no confidence that there will not be recurrence. The Panel noted Ms Johnson’s submission that there would be no repetition because of the serious adverse consequences already suffered by the Registrant. The reason the Panel is not persuaded by that argument is that without acceptance that the adverse consequences resulted from personal shortcomings, the causal connection between his breaches and his personal disadvantages is not present. As has already stated in its decision on the personal component of current impairment of fitness to practise, the Panel does not have confidence that there will be no recurrence. This necessarily results in there being a remaining risk of patient harm as well as loss of confidence in the profession.

66. In favour of the Registrant, the Panel fully acknowledges that he practised without adverse regulatory findings before the events considered by the Panel and has undertaken work which has resulted in a positive reference since then. Furthermore, he has provided positive personal testimonials.

67. With these findings in mind, the Panel first considered whether any sanction is required. The clear conclusion of the Panel was that the findings are far too serious to result in it taking no further action.

68. When the Panel considered the available sanctions, it decided that a Caution Order would not be appropriate. A Caution Order would not offer a proper degree of protection to the public. Further, it would not reflect the seriousness of the findings, and would therefore neither serve as a deterrent to other professionals nor sufficiently maintain public confidence.

69. The Panel next considered a Conditions of Practice Order, and it carefully considered conditions of the type suggested by Ms Johnson. However, the conclusion of the Panel was that a Conditions of Practice Order was not appropriate. No specific training, of the sort suggested by Ms Johnson, is required for a health professional to know they should not act dishonestly. Furthermore, when, as in the present case, the underlying problem is an attitudinal one which is not acknowledged, the Panel has concluded that it would not be possible to formulate realistic and enforceable conditions of practice that would prevent repetition which at the same time would permit autonomous practise. It would not be practicable to have a practitioner so closely supervised that he could not access records or tamper with records when he should not, quite apart from the fact that, were such conditions necessary, there would be insufficient confidence in that practitioner’s integrity for them to be permitted to practise, even with conditions.

70. It followed from these findings that the Panel next considered suspension. The conclusion of the Panel was that suspension is the appropriate sanction. This would adequately protect the public, maintain confidence in the profession and mark the seriousness of the misconduct found proved. Were the Panel to be satisfied that the Registrant would remain of the view he currently holds with regard to acceptance of wrongdoing, it would have concluded that the only sanction to be imposed would be one of striking-off. That would be because the Panel would be satisfied that the Registrant would never be safe to return to practice and would continue to pose an unwarranted risk to the maintenance of confidence in the profession. However, as has already been stated, the Registrant practised for some years without findings, and, although he has already had two years to adjust his attitude towards the events of 17 December 2018, and over two months since learning of the Panel’s findings in relation to those events, the Panel has stepped back from taking the serious step of striking him off the register to allow him a final opportunity to consider his position. In short, while there is some residual hope of movement on the part of the Registrant, a Suspension Order is a necessary but sufficient response. In particular, the Panel was mindful of the financial and family consequences of a Suspension Order for the Registrant, but considered that such an order is required because of the seriousness of the matter. It is therefore a proportionate response.

71. The Panel has concluded that the appropriate length of the Suspension Order is 12 months as the passage of time to date does not allow confidence that if the Registrant’s position changes, that it will do so very quickly.

72. The Panel wishes to add two further points that relate to the future review of the Suspension Order:

• In common with all Suspension Orders, the order made in this case will be reviewed by a panel of the Conduct and Competence Committee before the order expires. The order made on that review will be entirely a matter for the panel undertaking it, and this Panel does not intend to say anything that will limit the discretion available to that future panel. However, it is important that the Registrant should understand that the reviewing panel will have all the sanction powers that were available to the present Panel, including the making of a Striking-Off Order. As just stated, the order to be made on the review will be within the discretion of the future panel, but the Registrant would be well advised to consider that the view might be taken that if his attitude remains unchanged, a Striking-Off Order might well be made.

• The Panel acknowledges that it is customary when making a Suspension Order to suggest actions that might be taken by a suspended registrant to present to the reviewing panel in order to achieve a favourable outcome. This Panel has taken the decision not to do that, taking the view that in the circumstances it has made it clear to the Registrant why he has not persuaded it that he is fit to be permitted to practise now. It is a matter for him to decide, if he wishes to persuade a reviewing panel that he should be permitted to return to practice, what steps he wishes to take for that purpose.

Order

That the Registrar is directed to suspend the registration of Chima Kenneth Njemanze for a period of 12 months from the date this order comes into effect.

This order will be reviewed before its expiry.

Notes

Interim Order

1. After announcing the Panel’s decision that the sanction would be one of suspension, the Presenting Officer applied for an Interim Suspension Order to cover the appeal period.

2. The Panel first considered whether the Registrant had been put on notice that an interim order might be applied for. The notice of hearing sent to the Registrant by email on 17 December 2020 informed the Registrant that in the event of a substantive order being imposed, an interim order might be applied for. The Panel was satisfied that this communication afforded the Registrant an opportunity of being heard on the issue and therefore constituted good notice.

3. Furthermore, the fact that the Registrant was represented by Counsel resulted in it being fair to consider the application for an interim order.

4. The Panel approached the application on the basis that the default position established by the legislation governing this process is that when a substantive sanction is imposed, the ability of a Registrant to practise will not be restricted until his or her appeal rights are extinguished. It follows that specific reasons must exist before it is appropriate for an interim order to be made. Any such reason must engage one or more of the grounds that can justify the imposition of an interim order, namely, (i) that it is necessary for protection of members of the public; (ii) otherwise in the public interest; or (iii) in the registrant’s own interests.

5. Ms Johnson submitted that no interim order should be made because the Registrant is currently working in the Republic of Ireland, and although that is not a jurisdiction directly covered by the HCPC, it is believed that he requires his HCPC registration to work in that role through the agency with which he is registered. It follows that she submits that if an interim order is made, the Registrant will not be able to complete his fixed term contract which is due to conclude at the end of March 2021. He and his family would be disproportionately affected if an interim order is made. She also referred to the fact that there has been no complaint about the work he has done hitherto.

6. The Panel has concluded that in this particular case the findings made require an interim order because it is necessary for protection and is otherwise in the public interest. The reasons for this decision are those that resulted in the Panel deciding that a substantive order of suspension is required, namely the ongoing risk presented by the Registrant as identified by the Panel in its decision on impairment to fitness to practise. Furthermore, the public interest ground is engaged because of the risk that public confidence in the profession would be seriously undermined were the Registrant to be permitted to practise without restriction.

7. The Panel considered whether the factors, just explained, as requiring an interim order could be satisfactorily addressed by the imposition of interim conditions of practice. However, the conclusion of the Panel was that they could not for the same reasons the Panel concluded that the conditions of practice would not be an appropriate substantive sanction.

8. It followed from this decision that an Interim Suspension Order should be made. In reaching this decision, the Panel was mindful of the submissions of Ms Johnson as to why an interim order should not be made, but concluded that the necessity of such an order outweighed the negative consequences for the Registrant and his family.

9. The Panel determined that the Interim Suspension Order should be made for the maximum period of 18 months. If the Registrant does not appeal the Panel’s substantive decision and order, the interim order will automatically come to an end after 28 days. If, on the other hand, the Registrant does appeal the Panel’s substantive decision and order, it could take18 months for that appeal to be finally determined, and the Panel was satisfied that the interim order should remain until it is finally determined.

10. The Panel makes an Interim Suspension 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. This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

 

Hearing History

History of Hearings for Mr Chima Kenneth Njemanze

Date Panel Hearing type Outcomes / Status
25/02/2021 Conduct and Competence Committee Final Hearing Suspended
23/11/2020 Conduct and Competence Committee Final Hearing Adjourned part heard