Mr Simon A Lockyear

Profession: Biomedical scientist

Registration Number: BS43334

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 11/01/2021 End: 17:00 14/01/2021

Location: This hearing took place virtually

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Whilst registered with the Health and Care Professions Council as a Biomedical Scientist and employed by Public Health Wales Microbiology, approximately between October 2017 and December 2017 you:

1. Did not put plate labels to indicate:


a) The sensitivities on the culture plates;

b) Future culture testing was needed.

 

2. Reported that for the following cases there were H3 sensitivities when the results would not have been available yet:

a) U17*******

b) U17*******

 

3. Reported that for the following cases there were H4 sensitivities when the results would not have been available yet:

a) U17*******

b) U17*******

c) U17*******

d) U17*******

 

4. Reported that for the following cases there were H5 sensitivities when the results would not have been available yet:

a) U17*******

b) U17*******

c) U17*******

d) U17*******

e) U17*******

 

5. Reported that for the following cases there were A1 A2A sensitivities when the results would not have been available yet:

a) U17*******

b) U17*******

c) U17*******

 

6. Did not correctly report results for the following cases:

a) U17*******

b) U17*******

c) U17*******

d) U17*******

e) U17*******

 

7. Reported the organism identity and sensitivities in a single results entry for the following cases when the results would not have been available yet:

a) U17*******

b) U17*******

c) U17*******

d) U17*******

e) U17*******

f) U17*******

g) U17*******

h) U17*******

i) U17********

j) U17********

k) U17********

l) U17********

m) U17*******

n) U17*******

o) U17*******

p) U17*******

q) U17*******

r) U17*******

s) U17*******

t) U17*******

u) U17*******

v) U17*******

w) U17*******

x) U17*******

y) U17*******

z) U17*******

aa) U17*******

bb) U17*******

cc) U17*******

dd) U17*******

ee) U17*******

ff) U17********

gg) U17*******

hh) U17*******

ii) U17*******

 

8. Reported Malditof results for the following cases when these were not available:

a) U17*******

b) U17*******

c) U17*******

d) U17*******

e) U17*******

f) U17*******

g) U17*******

h) U17*******

i) U17*******

j) U17*******

 

9. Did not put through specimens requiring antibiotic ranges other than H1 for further culture work.

 

10. The matters set out in paragraphs 1-9 constitute to misconduct and / or lack of competence.

 

11. By reason of your misconduct and / or lack of competence, your fitness to practise is impaired.

Finding

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 was provided with an email from the HCPC dated 9 October 2020 and 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 and the fact that the hearing would be held remotely via videoconference. The Panel has seen confirmation that the email was delivered 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. The Registrant did not appear. The Panel had before it an email of 7 January 2021 from the Registrant to the HCPC, confirming that he had received the emailed invitation to participate in the hearing today and stating, “I am aware it is most likely in my best interest to attend via the link however I’m having to deal with my [health conditions]... I will be available for contact for any reason.”

5. The Panel also had sight of an email dated 8 January 2021, sent by the HCPC to the Registrant, in response to the Registrant’s stated intention not to attend the hearing. The HCPC Case Manager reassured the Registrant that there would be regular breaks throughout the hearing and encouraged the Registrant to participate. There had been no further communication from the Registrant.

6. Mr Simon Walters for the HCPC applied for the hearing to proceed in the absence of the Registrant. He submitted that the Registrant knew about the hearing, had voluntarily waived his right to attend and had not sought any adjournment. He submitted that it was in the public interest to proceed today and that an adjournment was unlikely to secure the Registrant’s attendance on a later date.

7. The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note of September 2018 on proceeding in absence and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony) [2004] 1 AC 1HL and GMC v Adeogba [2016] EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost care and caution and with the fairness of the hearing at the forefront of its mind.

8. The Notice of Hearing dated 9 October 2020 informed the Registrant of the date and details of the Conduct and Competence Committee hearing, and of his right to attend and be represented. He was also advised of the Panel’s power to proceed with the hearing in his absence if he did not attend and of how he could apply for a postponement of the hearing. The Registrant was informed of the sanction powers available to the Panel, should it find his fitness to practise to be currently impaired. The Registrant had stated clearly that he would not be attending the hearing, citing two health conditions, and had not requested a postponement or adjournment of it. The Panel noted that the Registrant had also stated early in 2020 that he would not be planning to attend this final hearing as he would not cope well. The Panel took the view that the Registrant’s intentions had not changed, that he had waived his right to attend and that adjourning this hearing to a future date would serve no purpose.

9. The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today. The HCPC’s two witnesses, both registered professionals, were scheduled to give evidence on this first day of the hearing. The Panel took account of the public interest in the expeditious resolution of regulatory allegations and the fact that the allegations in this case are more than three years old, the hearing having been postponed in the spring of 2020 due to the COVID-19 pandemic. Following the guidance in the case of Adeogba, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.

10. The Panel considered that there was some disadvantage to the Registrant in proceeding in his absence as he would not be able to challenge any evidence put forward by the HCPC or give his own evidence. In the Panel’s judgment, however, this could be mitigated. The Registrant had addressed the allegations in his correspondence with the HCPC and his response to the Notice of Allegation and the Panel would consider his representations carefully. The Panel was also mindful that it could explore any inconsistencies in the evidence which it identified and should ask questions and consider points which might be in the Registrant’s interests and were reasonably apparent from the evidence. Furthermore, the limited disadvantage was the consequence of the Registrant’s decision to absent himself from the hearing, waive his rights to participate and be represented.

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

Conducting the hearing in private

12. The Panel heard that reference would be made during the hearing to the Registrant’s health, to the health of family members and to the Registrant’s private life.

13. Having considered the HCPTS Practice Note on “Conducting Hearings in Private” and having accepted legal advice, the Panel was satisfied that, in order to safeguard the Registrant’s private life, any references to health or to the Registrant’s private life should be heard in private. All other parts of the hearing would be in public session.

Documents:

14. The Panel received a bundle of documents from the HCPC comprising a case summary, witness statements and exhibits running to 220 pages. The Presenting Officer also provided a written documentary matrix to the Panel.

15. The Registrant’s written representations of 16 January 2019 and 19 November 2019 were before the Panel. In addition, the Panel had sight of the Registrant’s Response Pro-Forma and Pre-Hearing Information Form, undated but completed by the Registrant in early 2020 in response to the Notice of Allegation in which the Registrant circled “Yes” to the question of “Do you admit the facts alleged against you, as set out in the Notice of Allegation sent on 30 April 2019 in its entirety?” and attached a letter in which he addressed the allegations only in part, stating “I was the person who authorised these reports which are part of the allegation.” It is important to record that although in that letter the Registrant did not challenge the factual particulars of the Allegation in any way, acknowledged errors on his part and appeared to be making some sort of admissions to the Allegation in relation to his reports (whilst not specifically referring to any of the Particulars), the Panel did not construe these statements as amounting to formal admissions.

16. No further written submissions or documents had been received from the Registrant for the purposes of the hearing.

Background:

17. The Registrant was employed by national public health agency Public Health Wales (the Agency) from 1 April 2003 as a Specialist Biomedical Scientist, initially in South Wales before transferring to North Wales in 2017.

18. Colleague 1, a Senior Biomedical Scientist, took over from the Registrant on the urine bench in the Lab on 8 December 2017 She noted that the Registrant had failed to write on the outside of the agar plates to indicate the work to be carried out. Colleague 1 began to label fresh agar plates to continue the work the Registrant had been doing and came across a lab sample number with a heavy growth of bacteria. There was no corresponding label generated for the sensitivity plate. Colleague 1 then went onto the lab computer to bring up the electronic entry for that sample and found that the report had already been released by the Registrant, within 24 hours of the sample having been received. Based on her knowledge of processes, Colleague 1 knew that this was not possible. She proceeded to work through the plates the Registrant had handed over to her and continued to find errors in a similar vein.

19. At that stage Colleague 1 escalated her concerns to her Lab Manager on site. The concerns were that the Registrant had not been undertaking his work in accordance with the laboratory Standard Operating Procedures (SOPs) in that he had (i) recorded and reported unsubstantiated identification of organisms and (ii) recorded and released unsubstantiated antibiotic sensitivity test results. They continued to find errors, including from previous dates in October and November 2017, and the matter was escalated. The Registrant was subsequently suspended pending investigation.

20. A referral concerning these events was submitted by the Agency to the HCPC on 4 January 2018 following conclusion of the local investigation. On 24 April 2019 the matter was referred by an Investigating Committee Panel of the HCPC.

Decision on Facts:

21. The Panel commenced its consideration of the facts by assessing the witnesses who had given oral evidence. The witnesses called by the HCPC, and the Panel’s assessment of them, were as follows:

- Colleague 1, a Senior Biomedical Scientist working for the Agency and responsible for the urine section of the Lab, who took over from the Registrant on the urine bench on 8 December 2017. Colleague 1 said that she had known the Registrant for 18 months at the time of the alleged incidents, that they got along well and had never had any problems. Although she did not tend to work alongside the Registrant on the bench, they would work in the same Lab. Colleague 1 acknowledged that the Lab was very busy but that, in her opinion, the Registrant worked quickly and had not appeared to be worried about completing his work on shift; in fact, she recalled that he would often help others. Colleague 1 said that she was not aware of any pressure from senior management to complete tasks, reasoning that “you can only achieve so much in so much time.” Colleague 1 i) undertook further work on the samples received by the Registrant on 7/8 December 2017 and ii) conducted an audit of the samples worked on by the Registrant on 5 shifts in October and November 2017. Colleague 1 explained that the audit could not analyse the specific outcomes but it could determine whether the results could have been released in light of the timing of when the specimens had been received in the Lab and the reports of samples released.

- The Panel found Colleague 1 to be a credible witness who provided detailed evidence around the expectations of Biomedical Scientists at the Agency. She was clear in her mind about the working systems in place, including the computer systems and was able to provide detailed explanation of the procedures around the interrogation of samples and the provision of subsequent reports. The Panel considered that she provided a fair account of her professional relationship with the Registrant, to the extent of being supportive of him, noting that they had had professional discussions about organisms and work on the bench, and describing him as being experienced and very knowledgeable.

- Colleague 2, a registered Pathologist working at the Agency as the National Clinical Lead for Microbiology, appointed as part of the Agency’s investigations to conduct a risk assessment to assess the level of potential harm to 19 patients as a result of the Registrant’s alleged identified errors on 7/8 December 2017. Colleague 2 said that he did not know the Registrant personally. The Panel had before it a copy of Colleague 2’s Patient Review Investigation Report dated 10 May 2018. In Colleague 2’s clinical judgment and after retesting, there was found to be either no risk of harm or a negligible risk of harm in relation to 14 of the 19 patients; in relation to 5 of the 19 patients, however, there was found to be “a variable risk of harm”. The conclusion of Colleague 2’s report was that, further investigations having been carried out, “There was no evidence identified that there was patient harm for any of the patients.”

- The Panel found Colleague 2 to be a credible and straightforward witness who did his best to assist the Panel during his evidence. He demonstrated experience and clarity around the parameters of what he had been asked to investigate at the Agency. The Panel considered that Colleague 2 was fair to the Registrant in his evidence and had no reason to mislead the Panel.


22. The absence from the hearing of the Registrant necessarily resulted in there being no opportunity for the Panel to assess his account of events. However, throughout its deliberations the Panel had regard to the accounts given by the Registrant in his correspondence of 2019 and his letter of early 2020. The Panel also had regard to what the Registrant said when interviewed for the purposes of the internal Agency investigations. The Panel therefore considered whether, on the totality of the evidence, the HCPC had discharged the burden of proving the factual particulars on the balance of probabilities.

23. The Panel considered each of the Particulars and made the following findings:

Particulars 1(a) and 1(b) – found proved

24. Colleague 1 explained to the Panel that, on taking over from the Registrant on 8 December 2017, “Initially my concern was that the Registrant didn’t appear to have prepared labels.” The Panel accepted the evidence from Colleague 1 about the process of labelling culture plates and the importance of doing so. She explained that plates could be labelled in different ways:

• by hand by writing on the plates;

• the computer system also generated labels with the requisite Accession number, a barcode and the patient’s name. Colleague 1 explained that the process was to read a sample, input the information onto the LIMS computer system, thereby generating a label which the Biomedical scientist would then print. Alternatively, blank or general labels could be printed off and filled in by hand.

25. Colleague 1 said that the Registrant “did not ever write on the agar plates. This was something that only he did as all other staff wrote directly onto the plates. Instead, he would generate the antibiotic range (H2, H3 etc.) on the barcode label. I am not aware whether this had been addressed with him. If you are completing all of the work on a batch of samples yourself then it may be that you know what you are doing in respect of each sample, however, if someone else is completing your work or needs to take over, such as on 8 December 2017, then it is much harder for that person to take over when the agar plates are blank.”

26. The Panel also accepted Colleague 1’s evidence that, “When checking the remaining agar plates in the batch of work from [a hospital] that [the Registrant] had read, I found another two samples which concerned me. My concerns arose because I could see growths on the agar plates but there were no labels printed and no indication written on the agar plate of the sensitivities test required.”

27. In relation to 1(a), the Panel also relied on the photographs of the Registrant’s culture plates included within the HCPC’s bundle of evidence and noted that there were no plate labels indicating the sensitivities on the culture plates.

28. In relation to 1(b), the Panel relied on the screenshots within the HCPC’s evidence bundle of the individual records completed by the Registrant and uploaded to the LIMS computer system with no indication that any further work or culture testing would be done.

29. The Panel was satisfied that the HCPC had established to the required standard that the Registrant did not put plate labels to indicate either the sensitivities on the culture plates or that future culture testing was needed. Accordingly, the Panel found Particular 1 proved.

Particulars 2-5

30. Particulars 2, 3, 4 and 5 of the Allegation all relate to the Registrant reporting certain sensitivities on 7/8 December 2017 when the results would not have been available. The Panel had sight of the Agency’s SOP on Investigation of Urine which describes the processing of specimens associated with the investigation of urine. It accepted the evidence before it that the Registrant signed this SOP on 30 August 2016, confirming that he had read it and was aware of the correct procedure.

31. The Panel also had sight of a report compiled by Colleague 1 as part of the Agency’s investigation in which she detailed all of the samples that had been reported with organism identification and sensitivities. This report dealt with each Laboratory Accession number referenced in Particulars 2-5 of the Allegation and presented in tabular form the Registrant’s findings summarised from his original report; the findings 24 hours after the specimen had been received; and a report of subsequent work done by Colleague 1 to carry out the tests required and produce a correct report.

32. During the hearing, Colleague 1 provided detailed explanations to the Panel around how samples are inoculated and incubated, and the time periods required. The Panel accepted Colleague 1’s evidence that an incubation time of 16-24 hours would be required to grow a culture and that it would not be possible for a Biomedical Scientist to reach a firm conclusion in relation to the results before 16-24 hours had elapsed. Further sensitivity plate testing would then be carried out. As such, Colleague 1’s evidence was that, except in relation to H1 antibiotic sensitivities, it would not be possible to submit a completed report of firm conclusions before 48 hours had elapsed. The Panel accepted the evidence of Colleague 1 that, “All H3, H4, H5, A1 and A2A sensitivities were reported at 24 hours, although it would not be possible to have these antibiotic ranges before 48 hours.”

Particulars 2(a) and 2(b) – found proved

33. The Panel accepted the evidence of Colleague 1 that the two samples with Laboratory Accession numbers referenced at 2(a) and (b) were both reported by the Registrant with H3 antibiotic sensitivities that would not have been available to him at the time of his reporting on 7 December 2017. In accepting this evidence, the Panel also had sight of the SOP, screenshots of the Registrant’s original reports (detailing in each case the time and date that the sample had been received and the time that the Registrant had reported his results) and Colleague 1’s report.

34. The Panel was satisfied on the evidence before it, both that the Registrant reported that there were H3 sensitivities and that the results would not have been available at the time of his reporting. Accordingly, the Panel found Particular 2 proved in its entirety.

Particulars 3(a)-(d) – found proved

35. The Panel accepted the evidence of Colleague 1 that the four samples with Laboratory Accession numbers referred to at 3(a)-(d) were all reported by the Registrant with H4 antibiotic sensitivities that would not have been available to him at the time of his reporting on 7 December 2017. It further accepted Colleague 1’s evidence that, “There would not have been a H4 plate at 24 hours. He had made an assumption about the sensitivity pattern.” In accepting this evidence, the Panel also had sight of the SOP, screenshots of the Registrant’s original reports (detailing in each case the time and date that the sample had been received and the time that the Registrant had reported his results) and Colleague 1’s report.

36. The Panel was satisfied on the evidence before it, both that the Registrant reported that there were H4 sensitivities and that the results would not have been available at the time of his reporting. Accordingly, the Panel found Particular 3 proved in its entirety.

Particulars 4(a)-(e) – found proved

37. The Panel accepted the evidence of Colleague 1 that the five samples with Laboratory Accession numbers referred to at 4(a)-(e) were all reported by the Registrant with H5 antibiotic sensitivities that would not have been available to him at the time of his reporting on 7 December 2017. In accepting this evidence, the Panel also had sight of the SOP, screenshots of the Registrant’s original reports (detailing in each case the time and date that the sample had been received and the time that the Registrant had reported his results) and Colleague 1’s report.

38. The Panel was satisfied on the evidence before it, both that the Registrant reported that there were H5 sensitivities and that the results would not have been available at the time of his reporting. Accordingly, the Panel found Particular 4 proved in its entirety.

Particulars 5(a)-(c) – found proved

39. The Panel accepted the evidence of Colleague 1 that the three samples with Laboratory Accession numbers referred to at 5(a)-(c) were all reported by the Registrant at 24 hours with A1 A2A antibiotic sensitivities that would not have been available to him at the time of his reporting on 7 December 2017. In accepting this evidence, the Panel also had sight of the SOP, screenshots of the Registrant’s original reports (detailing in each case the time and date that the sample had been received and the time that the Registrant had reported his results) and Colleague 1’s report.

40. The Panel was satisfied on the evidence before it, both that the Registrant reported that there were A1 A2A sensitivities and that the results would not have been available at the time of his reporting. Accordingly, the Panel found Particular 5 proved in its entirety.

Particulars 6 (a)-(e) – found proved

41. In relation to Particular 6(a), the Panel accepted the evidence of Colleague 1 that the Registrant reported the results as Proteus mirabilis. The Panel also saw a screenshot of the Registrant’s report taken from the LIMS system, showing the Registrant’s identification of Proteus mirabilis. Colleague 1 explained that there was no way from simply looking at a culture plate that Proteus mirabilis could be identified; you could say that it was of the Proteus species, but further investigation work (a MaldiTof test which provides rapid identification of bacteria) would need to be undertaken and this was supported by the Investigation of Urine SOP provided to the Panel. Colleague 1 stated, “This sample had been reported as Proteus mirabilis at the time the sensitivity plate was read. However, there was no indication that an identification test had been carried out, nor would it have been possible in the timescale in which it had been reported.” She also confirmed that her own further work identified that the culture was not, in fact, Proteus mirabilis. Accordingly, the Panel found particular 6(a) proved.

42. In relation to Particulars 6(b)-(e), the Panel saw screenshots of the Registrant’s reports taken from the LIMS system, evidencing in each case that the Registrant identified ‘no growth’ for cultures. The Panel accepted the evidence of Colleague 1 that the Registrant reported these results as ‘no growth’ when, in fact, on reviewing the plates later in the day on 8 December 2017, Colleague 1 identified clear bacterial growth on each plate and over 100 colonies on two of the agar plates. The Panel accepted Colleague 1’s clear evidence that, “…we count the number of colonies by looking at them. They are clearly visible in this case as small blue colonies.” The Panel also had before it copies of photographs of the relevant labelled plates which showed that there was growth on each of the plates (with the exception of the plate referenced at sub-particular 6(c)). The Panel accepted the evidence of Colleague 1 that, although the photographs had been taken a couple of days later, the growth would have looked the same to the Registrant when he completed his reports.

43. The Panel was satisfied on the evidence before it, that the Registrant did not correctly report the results identified and the Panel found Particular 6 proved in its entirety.

Particulars 7(a)-(z) and (aa) to (ii) – found proved

44. Colleague 1 explained to the Panel that she had been concerned by what she had found in relation to her review of the Registrant’s work on 7/8 December 2017. She said that the Lab only kept the agar plates for between four and seven days and that she could not, therefore, physically look at the agar plates that the Registrant had read prior to the beginning of December 2017. Colleague 1 was concerned to see from the computer system that there was the same trend in the work that the Registrant had carried out prior to 7-8 December 2017. She therefore conducted an audit of the Registrant’s work over 5 shifts in October-December 2017. The audit was requested by the Deputy Laboratory Manager/Head of Operations Bacteriology.

45. The Panel accepted Colleague 1’s evidence that, “Even without the physical samples there is enough evidence to say that the previous samples read and reported by the Registrant were handled in the same way that I found in my review of his work on 7–8 December 2017. In all cases it was evident from the computer system that all of [the Registrant’s] results had been reported less than 24 hours from receipt. As mentioned above, there is no way that H3, H4, H5, A1 or A2A sensitivity could have been reported within less than 48 hours. Where [the Registrant] had reported sensitivities within this timescale I was able to confirm that the sensitivities would not have been completed. However, if he had stated that there was no growth on any of the plates, I had no way of testing whether this is correct or not.”

46. The Panel had sight of the audit report compiled by Colleague 1 as part of the Agency’s investigation in which she detailed all of the samples that had been reported with organism identification and sensitivities. The Panel accepted the evidence detailed within the report, including Colleague 1’s statement that “All LIMS entries of organism ID and sensitivities were entered onto LIMS in a single Results entry 24 hours after receipt in the laboratory” and was satisfied that, in relation to each of the 35 sub-particulars, the Registrant had reported the organism identity and sensitivities in a single results entry when the results would not have been available.

47. Accordingly, the Panel found Particular 7 proved in its entirety.

Particulars 8(a)-(j) – found proved

48. The Panel noted the evidence contained in Colleague 1’s audit report that, in relation to each of the samples relevant to sub-particulars 8(a)-(h) and (j), “Proteus mirabilis [was] reported in single entry with Malditof score in lab comments”; in relation to the sample relevant to sub-particular 8(i), “Streptococcus Group B [was] reported in single entry with H3 and Malditof score reported in lab comments.”

49. Colleague 1 explained that MaltiTof tests are performed in one batch, once all of the plate readings and the further sensitivity plates have been performed and after the antibiotic sensitivities have been analysed. She said that this would usually be mid to late afternoon of the second day. Colleague 1 gave clear evidence to the Panel that “The MadiTof results would not be available at the time of the culture plate reading in the morning.”

50. The Panel accepted Colleague 1’s evidence that, “I noted in my audit when I went to the MaldiTof database none of the samples had been entered onto the system. This is evidence that none of the samples had had an identification performed on the MaldiTof. Therefore, there was never any MaldiTof identifications of bacteria or MaldiTof scores available for these samples.”

51. The Panel was satisfied on the evidence before it that the Registrant reported MaldiTof results in each case when they were not available, and the Panel found Particular 8 proved in its entirety.

Particular 9 – found proved

52. The Panel accepted Colleague 1’s evidence that, “Following my analysis of [the Registrant’s] work of 7 and 8 December 2017, I noticed a clear pattern in his work. It appears that any specimen that had an H1 sensitivity plate which grew the correct organism (Coliform) had been reported correctly. If when reporting the H1, that organism was very resistant, further antibiotic ranges had been processed. If there was a growth of a Coliform organism which did not have a H1 direct sensitivity plate, the H1 was performed. In both of these circumstances where [the Registrant] processed the work for further sensitivities, he had made entries in Lab comments to demonstrate this. However, any growth on the agar plates which required an antibiotic sensitivity test of any range other than H1 (e.g. H3, H4, H5, A1, A2A) had not been completed by [the Registrant]. For these samples, sensitivities had been reported which would not have been available at the time.”

53. The Panel further accepted Colleague 1’s evidence that the Registrant undertook an exercise in which he made a series of conclusions, some based on previous samples and results from the same patients. Colleague 1 was clear that she identified a pattern in his work.

54. The Panel was satisfied that the HCPC had established to the required standard that the Registrant did not put through specimens requiring antibiotic ranges other than H1 for further culture work. Accordingly, the Panel found Particular 9 proved.

Decision on Grounds:

55. The Panel went on to consider, on the basis of the facts found proved, whether the grounds of misconduct and/or lack of competence were established. The Panel noted that there is no burden or standard of proof at this stage and exercised its own professional judgement, keeping at the forefront of its consideration the overarching objectives of the HCPC.

56. Mr Walters submitted that the evidence of the witnesses regarding the Registrant’s experience, both as a Biomedical Scientist and regarding his experience in using the Agency systems, meant that there was no issue with the competence of the Registrant. Mr Walters further submitted that misconduct was the appropriate statutory ground to be applied in this case in light of the evidence. He referred to the relevant HCPC Standards of Proficiency for Biomedical Scientists (2014) as being paragraphs 1, 3, 4, 10, 12, 13 and 14. He also referred to the HCPC Standards of Conduct, Performance and Ethics (2016), particularly paragraphs 1, 6 and 10.

57. No submissions regarding misconduct or lack of competence had been received from the Registrant.

58. The Panel heard and accepted the advice of the Legal Assessor who reminded it of the tests for misconduct and lack of competence and referred the Panel to the cases of Roylance v GMC (No. 2) [2000] 1 AC 311 and Holton v GMC [2006] EWHC 2960 Admin. The Panel was aware that misconduct “is a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that misconduct is qualified by the word “serious”. It is not just any professional misconduct. The Legal Assessor advised the Panel that, in order to find lack of competence, it would need to have considered a fair sample of the Registrant’s work and that it should consider whether the Registrant has the knowledge, skills and judgment to practise safely.

59. The Panel concluded that the Registrant’s actions breached the following paragraphs of the HCPC Standards of conduct, performance and ethics (2016):

• 1 - Promote and protect the interests of service users
• 6 - Manage risk
• 10 - Keep accurate records of your work

The Panel also concluded that the Registrant breached the following Standards of Proficiency for Biomedical Scientists (2012):

• 1 - Practise safely and effectively within your scope of practice
• 3 - Be able to maintain fitness to practise
• 4 - Be able to practise as an autonomous professional, exercising your own professional judgement
• 10 - Be able to maintain records appropriately
• 12 - Be able to assure the quality of your practice

60. The Panel had careful regard to the context and circumstances of the matters it found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:

• The Registrant was a Band 6 Biomedical Scientists with 14 years’ professional experience; Colleague 1 described the Registrant as knowledgeable;

• The conduct occurred over a three-month period, between October and December 2017, and the Panel considered this in the context of the Registrant being qualified as a Biomedical Scientist since 2003;

• The information before the Panel, supported by the evidence of Colleague 1, was that there had been no issues with the Registrant’s professional ability, knowledge or practice prior to this; the Registrant himself has described the matters in this case as a “one blip” in his career.

61. In light of the above factors, the Panel did not consider that the Registrant’s poor practice indicated a lack of competence; it was not satisfied that he did not have the knowledge, skills and judgement to practise safely. The Panel bore in mind the Registrant’s comments during the Agency’s internal investigations that, although he had received training in Swansea as to how to process urines, he believed that he had received very little training on reporting, which he regarded as “insufficient” and that he had “learnt from trial and error how to process work on the urine bench”. In the Panel’s view, however, the matters found proved in this case relate to basic and fundamental duties of a Biomedical Scientist. In general terms, the Panel took the view that the Registrant was aware of the standards expected of him but failed to adhere to them. The Panel therefore found that there was not a lack of competence in respect of any of the matters found proved.

62. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards, would be sufficiently serious such as to amount to misconduct in this context. In relation to Particular 1 and the finding made by the Panel that the Registrant did not put plate labels to indicate either the sensitivities on the culture plates or that future culture testing was needed, the Panel was satisfied that, as indicated by Colleague 1, it was standard practice for Biomedical Scientists at the Agency to label the plates. It was of the view though that, although this was not best practice and indeed unusual, it was not sufficiently serious to amount to misconduct.

63. The Panel was in no doubt, however, that the remaining facts it had found proved in this case, Particulars 2 to 9, were sufficiently serious to result in a finding of misconduct. The Panel found that the Registrant did not follow the Agency’s SOPs and submitted reports with results that simply could not have been available, which not only breached the trust of the Agency by claiming that work had been undertaken when it had not, but also put patients at risk of unwarranted harm, as evidenced by Colleague 2’s report. Colleague 2 was clear that there is “a clear route to severe patient harm” if testing is not carried out accurately. The Panel found that the Registrant's actions over a 3-month period placed a number of patients at risk of harm through their needs not being met and by reporting results when they were not available, which resulted in inaccurate records being submitted and potentially the inappropriate treatment being prescribed. The Panel accepted the HCPC's case that there was a clear potential for patients not receiving the treatment that they needed. There was an ancillary risk of reputational damage to the Registrant’s employer if treating clinicians or hospitals became aware of the incidents and would likely lose confidence in the Agency and its work, but in the Panel's view this was of limited consequence when put into the context of the risk to patients.

64. The Panel had sight of the Registrant’s responses during the Agency’s internal investigations, which were largely that the Registrant accepted that he had made “errors” in relation to the 19 samples incorrectly reported. He claimed that the errors were due to a number of mitigating circumstances, including feeling unwell on 8 December 2017. The Panel considered, however, that the Registrant would undoubtedly have known that his professional work requires rigorous adherence to standards of integrity and reliability. The Panel found that the Registrant’s repeated conduct, not only on 7/8 December 2017 but in the 5 additional shifts investigated, demonstrated a pattern of behaviour that lacked professional integrity and that fellow Registrants would consider to be nothing short of deplorable. The Panel bore in mind the oral evidence of both Colleague 1 and 2 that they could not begin to understand why a Biomedical Scientist would report information that they did not have and both had appeared to be shocked by the Registrant’s actions. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.

Decision on Impairment:

65. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. It was mindful that a finding of impairment does not automatically follow a finding on that ground. In reaching its decision on impairment, the Panel has considered the submissions of Mr Walters for the HCPC and has had regard to the Registrant’s correspondence, and to the HCPTS Practice Note “Fitness to Practise Impairment” of December 2019. 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.

66. Mr Walters submitted that the Registrant’s fitness to practise was and remains impaired. He invited the Panel to assess the Registrant’s level of insight and what, if any, remediation had been undertaken. Mr Walters submitted that the Registrant’s conduct over the 2-3 month period in 2017 demonstrated an attitudinal failing that has not, on the evidence provided, been remedied; the Registrant has shown very limited insight into his shortcomings meaning that there was a “more than low” risk of repetition. Mr Walters invited the Panel to find that the risk of harm that the Panel had identified in this case was directly caused by the Registrant alone.

67. No specific submissions regarding impairment had been received from the Registrant. Although he had indicated in his email to the HCPC of 7 January 2021 that he had further documents to send, he had not done so. He said that he was “coming to terms and working through the issues that led me to why I put myself into the situation I was in where I did what I did. I wish I had the opportunity to stay on at the lab where I know I could have shown everyone that it was one blip. I would have and would be happy to gone [sic] through whatever training or self-reflection that was necessary or to have my work analysed by whomever for an X period of time. If I could re-wind time and go back I would have seeked help much sooner I would in a heartbeat, I would have seeked help and made sure that everything I did was done as per SOP’s. All I wish is that I may be given the opportunity to show what I have learned and put into practice and return to do the thing I love doing.”

68. 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 written representations in which he explained why he is not attending. The Registrant has engaged to a limited extent with these proceedings but provided no explanation as to why he made what he regards as “errors”. The Panel took the view that something went seriously wrong for this Registrant between October and December 2017. The Panel considered 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 health conditions but there is no evidence before the Panel that these were the cause of the events that arose during that time. The Panel noted that the Registrant had offered various reasons for his failings during internal investigations - from initially saying that he had no explanation, to then blaming his “errors” on “a fuzzy head”, or that the snow was causing him concern, or it was “one blip”. The Panel concluded that the Registrant had not yet provided a full explanation as to why he acted as he did which have resulted in findings of misconduct.

69. The Panel adopted the approach formulated by Dame Janet Smith in her Fifth Report of the Shipman Inquiry by asking itself the following questions:

70. Do our findings of fact in respect of the Registrant’s misconduct show that her fitness to practise is impaired in the sense that he:

a) has in the past acted and/or is liable in the future to act so as to put patients at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Biomedical Scientist profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession; and/or
d) has in the past and/or is liable in the future to act dishonestly?

71. The Panel determined that limbs (a), (b) and (c) were engaged in this case. It considered that the Registrant had, in the past, brought his profession into disrepute and breached the fundamental tenets of promoting and protecting the interests of patients and managing risk. In considering whether he would be liable in the future to act so as to put patients at unwarranted risk of harm, or to bring the profession into disrepute or to breach one of the fundamental tenets of the profession, the Panel carefully considered the personal component of impairment and considered the Registrant's level of insight, whether his misconduct was capable of remediation, whether it had been remedied and the risk of repetition.

72. The Panel was mindful that the Registrant qualified as a Biomedical Scientist in 2003 and worked for Public Health Wales with, on the information before the Panel, no previous concerns regarding the Registrant’s practice. On the information before the Panel, the Registrant has not worked as a Biomedical Scientist since he left the Agency.

73. The Registrant has not explained why he released results that he did not have or why he did not accurately record results. If he felt he was pressured to complete his work, he could have raised this with his line manager. The Panel had serious concerns about the Registrant’s professional judgement and considered that, on the information before it, the Registrant has not fully accepted the severity of his failings and has not completed any re-training on the fundamental importance of adherence to the principles set out in the Standards detailed above, the ethics of his profession and his responsibilities to patients, colleagues, his employer and the profession. The Panel was of the view that it had no evidence of deep reflection on the Registrant’s part.

74. The Panel considered that the Registrant had shown only a limited degree of insight into his misconduct. During the Agency investigations, he appeared to accept responsibility for his “errors” although he did not want to discuss them in detail in the investigatory meetings. The Panel took into account, however, the HCPTS guidance around insight, particularly that “Insight is a registrant’s genuine understanding and acceptance of the concerns, which have been raised in relation to their conduct.” The Panel considered that in the Registrant’s written communications to the HCPC, while he has expressed remorse and detailed a number of mitigating circumstances, he has not yet properly reflected on these failings to the extent necessary to demonstrate to this Panel that he has developed full insight into his misconduct since leaving the Agency. The Panel found that the focus of the Registrant’s written representations was on his position and his personal challenges, rather than the impact of his actions and omissions upon patients. The Panel considered that his written statements failed to show a well-developed level of insight and reflection on the impact of those serious actions on patients, colleagues, the Agency and on public confidence in the profession. The Panel did not consider the Registrant was 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, in the Panel’s view, the Registrant’s level of insight was far from fully developed. The information before the Panel was that the Registrant has not worked as a Biomedical Scientist since March 2018. It had no evidence of any re-training or continuing professional development undertaken by him. In light of all the information before it, the Panel found no evidence of remediation of the Registrant's misconduct. The Panel could not exclude the risk of repetition of such misconduct by the Registrant.

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

76. In relation to the public component, the Panel was satisfied that, given the outstanding questions as to why the Registrant committed the misconduct in this case, together with the number of failings and their potential seriousness, public confidence in the Biomedical Scientist profession would be undermined if there were no finding of impairment in this case. The Panel was 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 considered that a reasonable and informed member of the public would be concerned if there were no finding of impairment in a case where a registrant’s pattern of conduct had put patients at risk of unwarranted harm.

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

78. Accordingly, the Panel determined that the Registrant's current fitness to practise is impaired by reason of his misconduct, both on the grounds of public protection and in order to meet the wider public interest.

79. The finding of misconduct that is currently impairing the Registrant’s fitness to practise means that the Panel must proceed to consider the issue of sanction.

Decision on Sanction:

80. The Panel heard the submission of Mr Walters with regard to sanction.

81. In considering the appropriate and proportionate sanction in this case the Panel considered the guidance set out in the HCPC Sanctions Policy. The Panel received and accepted legal advice. The Panel was 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 patients and to maintain confidence in the Biomedical Scientist 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.

82. The Panel considered mitigating and aggravating factors.

83. The Panel first looked at the mitigating factors. It noted on the information before it that the Registrant is of good character. He admitted responsibility for his failings, not only at the relevant time but also in the partial admissions he made in the Pro-forma response document. He has expressed remorse in his written communications with the HCPC.

84. The Panel then looked at the aggravating factors and considered the potential harm to a significant number of patients caused by the Registrant’s repeated misconduct to be the principal aggravating factor in this case. The Panel was also of the view that the Registrant has not demonstrated any appreciable insight into his misconduct and its possible effects on patients, colleagues, his employer and his profession.

85. The Panel considered the available sanctions in ascending order of seriousness. It decided that to take no action or to impose a Caution Order would not be appropriate or proportionate given the seriousness of the misconduct concerned which involved the potential of harm to 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 failings occurred over a 2-3 month period during the Registrant’s employment at the Agency in North Wales, in what appears to be an otherwise unblemished career. The Registrant’s lack of meaningful insight makes a Caution Order, even for the maximum period of five years, inappropriate in this case and would not protect the public or satisfy the public interest. In these circumstances, the Panel considered that to protect the public and ensure that public confidence in the profession is not undermined, it must consider a more severe sanction.

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

“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”.

87. The Panel has found that the Registrant has not demonstrated appreciable insight into his misconduct. In the Panel’s view, this is not a case where the Registrant’s technical skills are in question. Whilst the Registrant might benefit from some element of retraining, the main cause of the Registrant’s misconduct involves attitudinal issues which cannot be properly addressed by the imposition of conditions of practice in the absence of appreciable insight. As indicated in the Sanctions Policy, for the sanction of Conditions of Practice to be appropriate in any case, there has to be a commitment on the part of the Registrant to resolve matters. Although the Registrant has engaged with this process to a limited degree, he has not provided up to date representations or provided the Panel with any explanation for his misconduct that might have provided it with an understanding of the underlying reasons, if any, for his attitudinal issues. The Registrant has not attended this final hearing and, as such, the Panel has not had the opportunity to test his level of insight.

88. Taking into account all of the above, the Panel concluded that Conditions could not be formulated to adequately address the risk posed by the Registrant, or the attitudinal issues. Further, the Panel determined that Conditions of Practice, in the current circumstances, would not address the public interest and the need to uphold standards and declare proper standards of conduct and behaviour.

89. The Panel went on to consider whether a period of suspension would be appropriate in this case. It took 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.”

90. The Sanctions Policy sets out that a period of suspension would be appropriate in circumstances where the misconduct is of a serious nature, but there is evidence to suggest that a registrant “is likely to be able to resolve or remedy their failings.” The Panel bore in mind the Registrant’s stated willingness to undertake any self-reflection and to be given the opportunity to show what he had learned from these events. The Panel concluded that this was the appropriate and proportionate sanction and that the Registrant was capable of gaining insight into his misconduct and shortcomings and demonstrating this to a future reviewing panel.

91. The Panel considered that a Striking Off Order in this case would be disproportionate. As already explained, while the Panel considered the misconduct involved in the case to be serious, it also considered it to be capable of being remedied. A Striking Off Order would also not allow the Registrant the opportunity to address the concerns that have been raised in this case.

92. The Panel determined that the appropriate and proportionate duration of the Suspension Order was 12 months. The Panel considered whether a shorter period of suspension was appropriate. However, taking into consideration the seriousness of the misconduct and the lack of evidence of developed insight on the part of the Registrant, the Panel determined that a shorter period of suspension, in the current circumstances, would not suffice to maintain public confidence in the profession and a regulatory process.

93. The Panel considered that a future reviewing panel may be assisted by the following:

a) the Registrant’s attendance either in person or remotely at the review hearing;

b) a reflective piece by the Registrant, concentrating on:
i. what led to the misconduct; and
ii. how the Registrant’s actions impacted, or could have impacted, on patients, his colleagues, his employing organisation and his profession;
iii. what he has learned from this experience

c) An up-to-date indication as to the Registrant’s future intentions and whether he wishes to remain in the Biomedical Scientists profession;

d) Information about any employment, paid or unpaid, since these events;

e) Evidence of the Registrant keeping his practice and skills up-to-date either by attending CPD courses (which may include online courses), or being employed in any other capacity in allied and relevant roles;

f) Up-to-date testimonials from colleagues and/or persons who are aware of these proceedings in relation to the Registrant’s work practices, work standards, and adherence to work protocols.

Order

That the Registrar is directed to suspend the registration of Mr Simon Lockyear for a period of 12 months from the date this Order comes into effect.

Notes

Interim Suspension Order:


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 Simon A Lockyear

Date Panel Hearing type Outcomes / Status
11/01/2021 Conduct and Competence Committee Final Hearing Suspended