Mrs Grace Masih

Preliminary Matters

1. The Panel has been convened to undertake a final hearing of the HCPC’s allegation against the Registrant, Mrs Grace Masih, a Biomedical Scientist (“BMS”).
2. An unusual feature of the case was that it was apparent that there had been an earlier attempt to conduct the final hearing. The Panel was not informed of the reason why the earlier attempt had not concluded; it was neither appropriate nor necessary for the Panel to be given any information about the earlier hearing, and no detail of what occurred at that hearing, or the stage reached, was disclosed to the present Panel.
3. At the commencement of the hearing some preliminary issues were raised as follows:
• An application by the HCPC that the hearing should proceed in the absence of the Registrant.
• An application by the HCPC to amend the factual particulars of the Allegation.
• Whether it would be appropriate to direct that part of the hearing should be conducted in private in the event that the evidence was presented relating to the Registrant’s health or other personal matters.
• Whether it would be appropriate for the Panel initially to reach a decision on the facts, leaving other elements of the allegation to be decided subsequently in the event that relevant facts were to be proven.
Application that the hearing should proceed in the absence of the Registrant
4. As the Registrant was not present at the commencement of the hearing, the Panel first asked to be provided with details of the notice of hearing that had been sent to her. The Panel was satisfied that the email sent to the Registrant’s email address dated 29 April 2022 constituted good service as it informed the Registrant of the date, time and manner in which the hearing was to be conducted.
5. After the Panel stated that it was satisfied that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of the Registrant. The basis of the HCPC’s application was that the Registrant had made a voluntary decision not to participate in the hearing and it was in the public interest that the allegations should be resolved.
6. The Panel was provided with evidence that the Registrant had stated that she did not intend to participate in the hearing, the most recent communication to that effect having been made on 14 June 2022. There was no suggestion that the Registrant’s decision not to participate arose from there being a particular inconvenience relating to the present hearing dates; indeed, the Panel was informed that the Registrant did not participate in the earlier hearing that had not concluded. The Registrant did, however, request that the Panel should have regard to a statement she had submitted, and this request was relevant to the present issue of proceeding with hearing in her absence.
7. The Panel accepted the advice it was given in relation to the proceeding in the absence of the Registrant and had regard to the guidance contained in the relevant HCPTS Practice Note. The conclusion reached by the Panel was that the hearing should continue notwithstanding the absence of the Registrant. The Registrant had made a voluntary decision to absent herself from the hearing, there were no grounds on which the Panel could conclude that there was any realistic likelihood that she would participate to a greater extent in the future were the present hearing not to proceed and the factual issues to be considered had occurred approximately three years ago. All of these factors pointed towards the public interest requiring the hearing to proceed, and the Panel was satisfied that any disadvantages arising from the Registrant’s absence were mitigated by the fact that the Panel would be considering the Registrant’s written statement. For all these reasons, the Panel directed that the hearing should proceed in the absence of the Registrant.
Application to amend the factual particulars of the Allegation
8. On 1 May 2020 a Panel of the Investigating Committee determined that there was a case to answer that the Registrant’s fitness to practise is impaired by reason of misconduct and/or lack of competence. Factual particulars of the matters underpinning that Allegation were provided and the Registrant was notified by a letter dated 11 May 2020 that the matter had been referred to the Conduct and Competence Committee. On 8 September 2020 a further letter was written to the Registrant by the HCPC informing her that at the commencement of the substantive hearing an application would be made to amend the factual particulars.
9. The amendments sought by the HCPC can be summarised as follows:
• In the sub-particulars of particular 1, the complaints that the Registrant did not perform tasks accurately were to be qualified by the word “consistently”.
• The fact that the Environmental and Blood Culture activities represented different areas of work, was to be acknowledged by removing Blood Culture bench issues from particular 1(b) and ensuring that they could be considered separately by the creation of a new particular 1(c).
• In particular 2 the erroneous date of 30 March 2019 was to be corrected to 12 March 2019.
• In particular 4, which originally alleged that the Registrant was unable to identify an unspecified “organism” was particularised to gram positive Streptococci.
• It was proposed that particular 5(a) should be amended to make clear what the complaint in relation to (approximately) seven samples is.
10. The statement submitted by the Registrant post-dated by many months the communication from the HCPC informing her that it desired to amend the factual particulars. No objection was made by the Registrant to the proposal.
11. The Panel accepted the advice it received as to the factors to be considered when considering an application to amend. Having done so, the Panel concluded that the amendments were appropriate, in the sense that they accorded with the factual case the HCPC wished to advance and would facilitate an expeditious and fair decision on that case by the Panel. The case that would be advanced were the amendments to be permitted would be entirely consistent with the “case to answer” determination of the Investigating Committee. Most importantly, the Panel was satisfied that the amendments would not prejudice the Registrant. The Panel therefore acceded to the HCPC’s application.
Part of the hearing in private
12. The Panel was asked by the Legal Assessor to consider whether it would be sensible to direct at the outset of the case that in the event of there being any mention of a specific health complaint or of any other matter of an acutely personal nature, that the hearing should move seamlessly into private session for that part of the evidence. The Presenting Officer did not object to this suggestion, and the Panel agreed to make the direction sought in order to protect the Registrant’s private life.
Making decisions on the facts before considering any other issues
13. The Panel was of the view that because of the considerable detail encompassed in the evidence, this was a case in which it would be desirable for the facts to be determined before any other possible stages should be considered. The stages of the statutory grounds and current impairment of fitness to practise would be considered later in the event that relevant facts are proven.

The Registrant’s response to the allegation

14. The Registrant’s statement contained acknowledgements that she had made mistakes when working in the relevant employment. They were not tendered as formal admissions of particulars contained in the Allegation, and although the Panel considered the entirety of the Registrant’s statement when reaching its decisions, it proceeded on the basis that the HCPC was required to discharge the burden of proving matters on the balance of probabilities having regard to the totality of the evidence.

Background

15. The Registrant was employed by Birmingham Women’s and Children’s NHS Trust (“the Trust”) from February 2018 until November 2019. Her employment was as a BMS working in microbiology. She initially worked at the Women’s Hospital, but a merger of the microbiology laboratories took place in the autumn of 2018, the Registrant moving across to the newly merged team located at the Children’s Hospital a little before other members of staff for reasons that will be mentioned briefly. All of the criticisms of the Registrant’s performance that are relevant to the factual particulars of the HCPC’s allegation relate to the period after the move to the Children’s Hospital.
16. The Registrant’s career before she commenced her employment with the Trust is relevant to issues arising in the case, not least to points raised by the Registrant in her defence. For approximately 11 years before she commenced working for the Trust as a Band 5 BMS, she had been working as a Band 2 Medical Laboratory Assistant (“MLA”) at another hospital, on a part-time basis, before she was employed by the Trust. The Registrant graduated with her initial degree in 2006, but she subsequently decided to return to study part-time for what she describes as a “top-up” degree that would enable her to become registered as a BMS. At one stage she dropped out of this further course of study for personal reasons, but subsequently returned to study part time, graduating with the “top-up” degree in 2014. She also completed the Institute of Biomedical Sciences portfolio required for registration as a BMS. From about 2015 she was in a position to commence her search for a Band 5 post as a BMS, but continued to work as a MLA.
17. Mention has already been made of the merger of the microbiology laboratories of the Women’s Hospital and the Children’s Hospital, the merged department being located at the Children’s Hospital. The merger was due to take place on 5 November 2018, but the Registrant moved across a little earlier because an incident had occurred in October 2018 which was perceived as a serious error made by the Registrant. It is important to stress that this alleged incident is not included in the factual particulars advanced by the HCPC and the Panel has neither made any findings about it, nor has it allowed the information it received about this alleged incident influence its decisions on the factual particulars that it has been required to decide. That this incident was alleged is, however, relevant for a number of reasons. One is that the Registrant relies upon what she perceived to be the consequences of it. Another is that it explains why the Registrant moved to the to-be merged laboratory at the Children’s Hospital before her colleagues at the Women’s Hospital. Yet another is that it is said by Mr JT that it was the reason why it was decided to offer the Registrant the opportunity to start from the beginning, in effect wiping the slate clean.
18. Upon the Registrant’s arrival at the Children’s Hospital, it was decided to expose her to the different benches upon which the different areas of work were performed. Perceived problems with the Registrant’s work resulted in a Capability Management Process being commenced. A capability plan was drawn up at a meeting on 25 February 2019. It was decided that the Registrant should commence on the urine bench as that was the most basic, and she was then to be rotated to other benches. A reported lack of overall or sustained improvement resulted in the capability process being escalated through different stages.
19. On 14 November 2019 the Registrant submitted a letter resigning from her employment with the Trust. The Panel has been provided with a copy of the letter and has taken full account of it, as it also has of the Registrant’s statement dated 15 March 2021. Amongst other matters, the Registrant complained of the lack of training that had been offered to her.

Decision on Facts

20. Throughout its deliberations the Panel applied the fundamental principle that the factual elements of the case are to be proved by the HCPC against the Registrant on the balance of probabilities. At no stage was it appropriate to consider whether the Registrant had disproved a matter alleged against her.
21. The HCPC called four witnesses to give evidence before the Panel. They were:
• Mr JT, Head Biomedical Scientist in Blood Sciences at the Trust.
• Mr PM, Head Biomedical Scientist and Advanced Lab Practitioner in the Department of Microbiology at Birmingham Children’s Hospital.
• Ms TW, Quality Lead in the Department of Microbiology at the Children’s Hospital.
• Ms AA, at the relevant time, Specialist Biomedical Scientist at the Children’s Hospital.
22. In addition to oral evidence of each of these witnesses, the Panel not only had very full witness statements made by each of them, but also a bundle of documentary exhibits extending to approximately 370 pages.
23. As has already been mentioned, the Registrant requested that the Panel should be provided with her written statement. This document, dated 15 March 2021, extended to 16 pages. The Panel fully considered this document, and indeed used it to frame questions it put to the witnesses called on behalf of the HCPC.
24. In reaching its decision the Panel has paid close attention to the entirety of the evidence with which it was provided. One aspect of the evidence relied upon by the Panel should be mentioned specifically. As will be seen, in respect of some of the criticisms of the Registrant’s work, the Panel has relied upon day schedule records prepared by colleagues who were allocated to work alongside the Registrant during the capability management process. Some of those day schedules were prepared by individuals who attended the hearing and gave evidence before the Panel. However, other day schedules were prepared by colleagues who have not been relied upon by the HCPC as witnesses, the inevitable consequence of that being that the documents were hearsay in nature. The Panel carefully considered what, if any weight, could fairly be applied to these documents, but came to the conclusion that they could be relied upon. The Panel’s primary reason for reaching this conclusion was that the day schedules were documents that were relied upon in the capability process meetings, which took place regularly and close to the recorded events. It follows that the Registrant had an opportunity to challenge or contradict the matters recorded at a time when she would have been able to recall the occasion described.
Particular 1 generally
25. Before turning to describe the findings made in relation to sub-particulars 1(a), 1(b) and 1(c), there are some general points to be made about particular 1:
• The stem alleges that by reason of the matters particularised in 1(a) to 1(c) inclusive, the Registrant did not demonstrate the competencies expected of a Band 5 BMS. The Panel therefore decided that it was necessary to reach decisions on those sub-particulars before the allegation in the stem could properly be addressed.
• The criticisms of the Registrant’s performance advanced by particulars 2 to 5 inclusive are alleged to have occurred within the same time period relied upon for the purposes of particular 1, and potentially they could also be said to be instances relevant to particulars 1(a) to 1(c) inclusive. The Presenting Officer submitted that there was enough evidence to prove particulars 1(a) to 1(c) without the circumstances of particulars 2 to 5 being considered for those purposes. The Panel took the view that it would be unfair to the Registrant for one incident to register in respect of more than one particular. The Panel has therefore not included any of the alleged circumstances concerning the latter particulars in reaching its findings in relation to particulars 1(a) to 1(c).
• A term that is common to particulars 1(a) to 1(c) inclusive is “consistently accurately”. It is in the nature of the work of a BMS that even the most competent practitioner will produce a result, offer an opinion or make a report that is not correct. The meaning that the Panel has applied to the word “accurately” is that it connotes a degree of accuracy reasonably to be expected of a practitioner with the level of training the Registrant had when working in the Band 5 post at the hospital. Accordingly, the term “consistently accurately” means maintaining that defined degree of accuracy over the period relevant to particulars 1(a) to 1(c), namely January 2019 to September 2019.
• Another word that is common to each of particulars 1(a) to 1(c) is “report”. The Panel has taken the view that report has a meaning other than “record”, and that for something to have been reported, evidence that information had been communicated to another or at least recorded in a way which would enable another to access it for their own purposes, would need to be demonstrated.
Particular 1(a) – Did not consistently accurately test and/or interpret and/or report on the results of Urine bench test samples.
26. In the context of the capability management procedure, the member of staff who was working closely with the Registrant completed a document that was described as a “day schedule”. Any criticisms of the Registrant’s performance were recorded on the day schedules. The day schedules were in turn considered at the capability procedure meetings. The Panel has been provided with a significant number of these day schedule documents, and they are relied upon by the HCPC, together with the oral and written evidence of the witnesses, to support the case advanced against the Registrant. It should not be thought that every single one contains a criticism of the Registrant. For example, the document relating to 5 March 2019 created by Ms TW, makes a comment about checking colony types. In evidence, Ms TW stated that her comment amounted to a training suggestion. Again, the day schedule relating to 7 March 2019 was described by Ms TW as “fine” and she confirmed that she would record positive things about the Registrant’s performance.
27. However, a number of the day schedules that have been presented to the Panel do reflect concerns that were felt by the members of staff who were overseeing the Registrant’s work. The Panel does not consider that it is necessary to provide an exhaustive list of these negative comments, but a short selection will be provided:
• On 11 April 2019 the Registrant was reading urine results. Ms AA’s evidence was that the Registrant had done sensitivity testing on four mixed culture booking urines. They should all have been categorised as “negative and release” rather than being selected for the further testing the Registrant had determined was appropriate, an error discovered the following day. The day schedule document for this day also records another four urine samples that grew Group B Streptococcus (“GBS”) in mixed culture being incorrectly reported as positive, when they should have been reported as culture negative. Between the matters recorded on this sheet there were inaccuracies relating to testing, interpreting and reporting.
• Ms AA was again assessing the Registrant’s work when the latter had returned to the urine bench in early May 2019. A day schedule sheet relating to 3 May 2019 and 5 May 2019 was overseen by Ms AA. Issues that arose on 3 May 2019 included two that had been discussed on earlier occasions, namely confusing mixed cultures (that should be recorded as negative) with positive, and confusing the fact that enterococci and enterobacters were completely different organisms. Inaccuracies in testing and interpretation were evident on this day.
• A day schedule relating to 4 & 6 July 2019 again records the Registrant erroneously interpreting a mixed culture as a pure culture. Furthermore, a Group B Streptococcus positive status of the sample was not commented upon. These constituted errors of interpretation and/or reporting.
28. After considering the totality of the evidence with which it had been provided relating to Urine bench test samples (of which those identified above constitute only a limited selection), the Panel finds that the Registrant did not consistently accurately test, interpret and report on samples.
29. It follows that particular 1(a) is proven.
Particular 1(b) – Did not consistently accurately test and/or interpret and/or report on the results of Environmental bench test samples.
30. The Registrant worked on the environmental bench for a relatively short period of approximately a month, it having been decided that she should be given a change from the urine bench on which she had been working and would give the Registrant experience of dealing with samples that would be relatively straightforward.
31. The short period of time spent on the environmental bench was reflected in the Panel being presented with a fewer number of day schedules relating to that work. However, the following are examples of those the Panel did receive:
• The day schedule for 3 May 2019 recorded that with regard to the assessment of Methicillin-resistant Staphylococcus aureus (“MRSA”) sensitivities, the Registrant had difficulty understanding the purpose of “D” zones to demonstrate induced resistance.
• The shortcomings identified on 9 May 2019 were explained by Ms AA. Having obtained a test result that suggested that a patient might have had MRSA, and then conducted another ID test that suggested that the organism was not significant because it is part of normal human flora, the Registrant failed to examine why she had originally obtained a test result that was significant for patient care.
• On 23 May 2019 the Registrant was being supervised by Ms TW. Ms TW reported that the Registrant forgot to add the antibiotic disc to the Cefoxitin sensitivity plates leading to a delay in reporting of the sensitivity results. She also undertook unnecessary sensitivity tests that demonstrated a lack of understanding of why the tests were being performed.
32. After considering the available evidence, the Panel concluded that the HCPC had discharged the burden of proving that the Registrant did not consistently accurately test and interpret environmental samples. However, the Panel concluded that the burden had not been discharged in relation to reporting samples falling into this category. The Panel did not see, for example, screenshots of computer entries made by the Registrant, and the close supervision under which the Registrant was conducting her work may well have had the result that errors were nipped in the bud before they could be erroneously reported.
33. It follows that particular 1(b) is proven save with regard to the reporting of samples.
Particular 1(c) – Did not consistently accurately test and/or interpret and/or report on Blood culture bench test results.
34. A selection of day schedules relevant to problems that arose when the Registrant was working on the blood culture bench are as follows:
• On 8 May 2019, when working with a colleague who was not called as a witness at the hearing, the Registrant failed to use a ruler when measuring a sample, an omission that resulted in her interpreting the same as sensitive when in was in fact resistant.
• On 17 May 2019, the Registrant misread the zone size for a staphylococcus growth from a culture, and also identified it as sensitive when the culture was in fact resistant.
• On 21 May 2019, the Registrant, when conducting sensitivity testing for a blood culture, read a mixed sensitivity pattern. This resulted in her identifying an Enterococcus as Vancomycin and Linezolid resistant, an extremely unlikely result. What she should have done was to take separate samples of each colony she had identified and grown them individually in order to obtain pure colonies before conducting sensitivity testing.
• On 24 May 2019, the analyser identified an Haemophilus species. The Registrant placed the infected sample on an incorrect sensitivity plate. This organism has to be cultured on a blood supplemented agar plate because colonies will not grow on a standard agar plate. This error demonstrated a lack of understanding on the part of the Registrant of the growth requirements of the organism.
35. The Panel’s decision in relation to blood samples corresponds to that made in relation to environmental samples. It finds that the matter has been established to the required standard in relation to testing and interpreting blood samples, but (for the same reasons explained in relation to environmental samples) not proven in relation to reporting.
36. It follows that particular 1(c) is proven save with regard to the reporting of samples.
Particular 1 stem – Between January 2019 and September 2019 you did not demonstrate the competencies of a Band 5 Biomedical Scientist …
37. Having decided that particulars 1(a) to 1(c) were proven (save in respect of the environmental bench and blood bench reporting already noted), the Panel then considered whether those findings represented a falling short of the competencies reasonably to be expected of a Band 5 BMS. The conclusion of the Panel was that they did.
38. It follows that the stem of particular 1 is proven.
Particular 2 – On 12 March 2019 you incorrectly interpreted the results of a maternity patient’s midstream specimen of urine (MSU) sample resulting in antibiotics being administered to Service User A unnecessarily.
39. This particular arises out of a report made by the Registrant on 12 March 2019 when she reported that a pregnant woman had a urinary infection. The report triggered a letter being sent to the patient’s midwife and G.P., as a result of which the latter contacted the patient and started her on antibiotics to treat the reported infection.
40. The urine sample that had been the subject of the Registrant’s report was a routine urine sample taken at a 12-week antenatal clinic. For a sample such as this to be classified as positive for a urinary infection, according to the Standard Operating Procedure (“SOP”) in place at the time, 100,000 bacteria of a single species would be required. Anything other than this should result in a negative report.
41. After the patient had been on antibiotics for five days, her midwife accessed the results and questioned the positive report of a urinary infection. The Registrant’s work was reviewed and it was discovered that there were mixed organisms present. The presence of GBS in mixed culture did not justify the positive report.
42. Having regard to all the evidence, the Panel finds that particular 2 is proven.
Particular 3 – On 1 August 2019 you incorrectly reported a sample as negative for Trichomonas vaginalis when it was positive.
43. On 1 August 2019 the Registrant reported on a genital test. The sample in question was accompanied by a clinical description that stated that there was a purulent discharge and cherry red cervix. It was the evidence before the Panel that this was a classic description of a sexually transmitted condition known as Trichomonas vaginalis. Ms AA was unaware of any other condition that resulted in such colouration of the cervix. Furthermore, the Genital SOP to which the Registrant had access, stated, “Presenting symptoms include an increased vaginal discharge, pruritius [and] strawberry cervix …”
44. The Registrant reported the sample as negative. Ms AA saw the clinical description that had accompanied the sample and noted that the Registrant had reported the sample as negative. Ms AA re-examined the sample and saw that the Trichomonas vaginalis parasite was immediately visible. When making its decision, the Panel did not overlook the Registrant’s submission that she did not have the clinical description at a hand when she examined the sample, but the Panel considers that if she did not have it, she should not have proceeded to examine the sample.
45. Having regard to all the evidence, the Panel finds that particular is 3 proven.
Particular 4 – On 14 August 2019 you were unable to identify and/or locate gram positive Streptococci on a smear slide.
46. On 14 August 2019 the Registrant was working in close proximity to Mr PM. She was working on the environmental and blood culture bench and was struggling to locate organisms on a smear slide. She had performed a gram stain, a procedure to identify bacterial cells in a sample. The Registrant stated to Mr PM that she thought she had found what she believed to be gram negative rods.
47. Mr PM adjusted the focus on the microscope slightly and found that the organisms were in fact gram positive Streptococci. It was Mr PM’s evidence that the two are completely different; one is pink and rod shaped; the other purple and round.
48. The Panel finds that the Registrant was unable to locate gram positive Streptococci on the smear slide, and having failed to locate them, therefore could not identify them.
49. Having regard to all the evidence, the Panel finds that particular 4 is proven.
Particular 5(a) – On 15 August 2019 you caused delays in the reporting of test results in that you did not update and/or release results in a timely manner for approximately seven samples.
50. 15 August 2019 was another day when the Registrant was working in close proximity to Mr PM. The Registrant was testing agar plates, but believed that further investigations were required. She accordingly used the MALDI-TOF machine, which reported the isolates found were insignificant. The Registrant did not immediately go back to the computer to update the results she had received and then release them, resulting in a delay in the reporting of the seven samples concerned.
51. Having regard to all the evidence, the Panel finds that particular 5(a) is proven.
Particular 5(b) – On 15 August 2019 you caused delays in the reporting of tests results in that you put the incorrect sensitivity on a blood culture growing an Enterococcus.
52. On the same day, when Mr PM was still working near the Registrant. The Registrant had performed a blood culture that had turned out to be positive for Enterococcus. Despite having received this result, she then placed an antibiotic disc set for a different organism, Streptococcus, on the plates. As antibiotic discs are designed to work differently on different organisms, the use of the incorrect antibiotic discs would not have yielded accurate results. The repeating of this test caused a 24-hour delay in reporting the results.
53. Having regard to all the evidence, the Panel finds that particular 5(b) is proven.
54. The consequence of the factual particulars found proven is that the Panel must move on to decide if the established facts amount to misconduct and/or lack of competence, and, if one or more of those statutory grounds is made out, whether the Registrant’s fitness to practise is currently impaired. The Panel will invite submissions from the Presenting Officer on these issues.

Decision on Grounds

55. After the Panel handed down its decision on the facts, it received and read written submissions from the Presenting Officer on the issues of the statutory grounds and current impairment of fitness to practise. The Panel also received advice from the Legal Assessor in relation to those issues.
56. The Panel carefully considered the submissions of the Presenting Officer. It was submitted that the Panel’s findings, taken together or individually, amounted to behaviour that fell seriously short of the standards expected of a BMS and that they created an unacceptable risk of harm to patients. The Panel was invited to consider whether a finding of misconduct should be made, particularly with regard to particulars 2 to 4 inclusive. The Presenting Officer’s submissions also included guidance on the proper approach to a consideration of lack of competence.
57. At this stage of the case the Panel reminded itself of the Registrant’s submissions. There is one particular aspect of those submissions that calls for specific mention, namely the contention that she was not properly trained in her role. The Panel carefully considered this issue. The Registrant had graduated with an appropriate degree, completed the portfolio necessary to secure HCPC registration had been registered as a BMS by the HCPC and shortly after registration had applied for the Band 5 post at the Women’s Hospital with knowledge of the Job Description and Person Specification. The Registrant acknowledged that the post was not a trainee post. Nevertheless, following the merger and while working at the Children’s Hospital during the time period relevant to the factual allegations, the guidance and support provided to the Registrant as attested to by the witnesses was considerably more than considered normal for a new Band 5 BMS.
58. The Panel considered that it was reasonable to expect that the Registrant should have had the knowledge and skills to perform the diagnostic procedures to the Panel’s findings of fact, notwithstanding the fact that it was the Registrant’s first post as a qualified BMS. The Panel, therefore, does not accept that lack of training while in post represents a valid reason for the underperformance underpinning the Panel’s factual findings.
59. The statutory grounds are advanced by the HCPC as “misconduct and/or lack of competence”. It therefore follows that the Panel could find one or other of those grounds, both of them (necessarily, on the basis of different facts) or neither. The Panel decided that it was appropriate initially to consider misconduct.
60. The Panel’s factual findings represent a number of failings extending over a period of time, and in respect of some of them, repetition of the same error. Furthermore, the Panel was concerned that the patient relevant to particular 2 was unnecessarily prescribed antibiotics because of the Registrant’s mistake, and that other errors would have had the potential to result in patient harm had they not been identified by other members of staff. The Panel certainly does not find the failings to be minor, but equally it does not find them to be so gross as for that reason alone to require a finding of misconduct. Crucially, when the Panel addressed the question as to why the Registrant made mistakes, there was no evidence upon which it could be said that there was any element of deliberate or reckless behaviour. Indeed, the contrary is true as the HCPC’s witnesses spoke about the Registrant’s good attitude towards her work and her desire to improve and do her work properly. In short, this is not a case of a practitioner who decided not to do what they could and should do.
61. In all the circumstances, the Panel concluded that this was not a case in which it would be appropriate to make a finding of misconduct even when all the proven particulars are taken in the round.
62. The Panel considered the elements of the HCPC’s Standards of conduct, performance and ethics referred to by the Presenting Officer. However, as the Panel concluded that the root cause of the Registrant’s difficulties was not attitudinal, but rather a lack of knowledge and skills, it was the Standards of Proficiency for Biomedical Scientists that were more appropriate in this case. Having regard to all the proven particulars taken together, the Panel found that the following standards of proficiency were breached:
• Standard 1, under the heading, “be able to practise safely and effectively within the scope of practice”,
o 1.1, know the limits of their practice and when to seek advice or refer to another professional;
o 1.2, recognise the need to manage their own workload and resources effectively and be able to practise accordingly.
• Standard 3, under the heading, “be able to maintain fitness to practise”,
o 3.3, understand both the need to keep skills and knowledge up to date and the importance of career-long learning.
• Standard 4, under the heading, “be able to practise as an autonomous professional, exercising their own professional judgement”,
o 4.1, be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge or procedures, and record the decisions and reasoning appropriately;
o 4.2, be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately;
o 4.3, be able to initiate resolution of problems and be able to exercise personal initiative;
o 4.4, recognise that they are personally responsible for and must be able to justify their decisions.
• Standard 9, under the heading, “be able to work appropriately with others”,
o 9.5, be aware of the impact of pathology services on the patient care pathway.
• Standard 13, under the heading, “understand the key concepts of the knowledge base relevant to their profession”,
o 13.7, be able to demonstrate knowledge of the underpinning scientific principles of investigations provided by clinical laboratory services.
• Standard 14, under the heading, “be able to draw on appropriate knowledge and skills to inform practice”,
o 14.2, be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy of other actions safely and effectively;
o 14.3, be able to perform and supervise procedures in clinical laboratory investigations to reproducible standards;
o 14.4, be able to operate and utilise specialist equipment according to their discipline;
o 14.7, be able to demonstrate proficiency in practical skills in ….. infection science …. where appropriate to the discipline;
o 14.9, be able to demonstrate practical skills in the investigation of disease processes;
o 14.10, be able to work in conformance with standard operating procedures and conditions;
o 14.11, be able to work with accuracy and precision;
o 14.19, be able to select suitable specimens and procedures relevant to patients’ clinical needs, including collection and preparation of specimens as and when appropriate;
o 14.20, be able to select and use appropriate assessment techniques;
o 14.21, be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment;
o 14.23, be able to undertake or arrange investigations as appropriate;
o 14.24, be able to analyse and critically evaluate as appropriate;
o 14.28, be able to demonstrate a logical and systematic approach to problem solving.
63. The Panel heeded the advice it received that breaches of HCPC standards should not automatically be treated as a statutory ground being made out. Nevertheless, the shortcomings identified in this case were sufficiently wide-ranging in time and type to justify a finding of lack of competence.
64. The finding of lack of competence meant that the Panel was required to go on to consider the issue of current impairment of fitness to practise.

Decision on Impairment

65. The Presenting Officer’s written submissions included submissions on this issue. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note entitled, “Fitness to Practise Impairment” updated in February 2022. Accordingly, the Panel considered both the personal and public components of impairment of fitness to practise.
66. The Panel’s finding of lack of competence has the inevitable consequence that the Registrant’s fitness to practise as a BMS in 2019 was impaired. However, the question to be answered is whether her fitness to practise is impaired now, some three years after the events that resulted in the finding of lack of competence. The Panel is satisfied that the shortcomings identified in this case are of a type that are capable of being remedied. However, there is an absence of evidence that they have in fact been remedied by the Registrant. Indeed, it is the Registrant’s own written submission dated 15 March 2021 that she had not worked within pathology since she left her employment with the Trust in late 2019, and it is thus very unlikely that she would have had the opportunity to address shortcomings.
67. There are other factors that are relevant to the personal component of impairment of fitness to practise, and they relate to the degree of insight shown by the Registrant into her failings. In the judgement of the Panel, in the submissions she has invited the Panel to consider she has demonstrated very little insight in relation to what occurred. She does not demonstrate an understanding that a professional person who is expected to be able to work autonomously has a personal responsibility to ensure that they are able to practise safely and effectively. She has not demonstrated that she has taken personal responsibility for what went wrong and has sought to explain it by reference to external factors, such as lack of training. Furthermore, there is an absence of recognition that patients might have been harmed.
68. The combination of the absence of evidence of steps being taken to remedy knowledge and skills deficiencies, and the very limited insight shown by the Registrant mean that there would be a significant risk of repetition were the Registrant to be permitted to return to practise as a BMS without restriction. This finding has the consequence that the Registrant’s fitness to practise is impaired in relation to the personal component.
69. In relation to the public component, the Panel is satisfied that a fair-minded and fully informed member of the public would have significant concerns were a BMS to be permitted to practise without restriction in the circumstances just described. Were no finding to be made confidence in the BMS profession and the regulation of it would be diminished and the Panel would be failing in its duty to declare and uphold proper professional standards. These factors require a finding of current impairment of fitness to practise in respect of the public component.
70. Having found current impairment of the Registrant’s fitness to practise it is necessary for the Panel to go on to consider the issue of sanction.

Decision on Sanction

71. After the Panel handed down its decision on the statutory grounds and current impairment of fitness to practise, it allowed the Presenting Officer time to read the determination before making oral submissions on the issue of sanction.
72. When the Presenting Officer made her submissions on sanction, she reminded the Panel of the importance of the HCPC’s Sanctions Policy and of the general principles contained within it. She identified a number of factors which were submitted to be aggravating factors, and, in view of the absence of the Registrant, reminded the Panel that in her written submission, the Registrant had made some admissions of shortcomings. The Presenting Officer made it clear that the HCPC did not urge the Panel to apply any particular sanction, submitting that the appropriate sanction is a matter for the Panel’s discretion.
73. In considering this matter the Panel accepted the advice it received that a sanction should not be imposed to punish. Rather, the proper purpose of a sanction is to protect the public from the risk of harm, maintain public confidence in the profession and the regulation of it, as well as to declare and uphold proper professional standards. The finding that an allegation is well founded does not necessarily require the imposition of a sanction. It follows that the first question to be answered is whether the finding in a particular case requires the imposition of any sanction. If it does, then the available sanctions must be considered in an ascending order of seriousness until one that is appropriate is reached. As the finding in the present case is one of lack of competence, the sanction range extends to, but not beyond, the making of a suspension order.
74. Before it addressed the appropriateness of the available sanctions, the Panel identified the factors that have already been mentioned that make this a serious case. They were the following:
• The risk of potential harm to patients.
• The fact that similar errors were repeated after explanations had been provided to the Registrant.
• The Registrant’s lack of insight.
• The absence of any remediation.
• The high risk of repetition.
75. The Panel then identified the factors it considered could properly be taken into account on behalf of the Registrant. They were the following:
• The evidence of the HCPC’s witnesses that during her employment, the Registrant was well motivated and trying to do her best.
• The Registrant’s written submissions contain acceptances of shortcomings.
• It has not been suggested that there have been any other regulatory findings against the Registrant.
76. With the factors just described in mind, the Panel then considered whether this is a case in which it is necessary to impose a sanction. The Panel decided that it is. To pass from the case without imposing a sanction would not reflect the seriousness of the case, nor would it provide the degree of public protection that is required.
77. The Panel then considered whether a caution order would be appropriate, and in that regard considered the factors identified in paragraph 101 of the Sanctions Policy. The findings of the Panel do not represent an issue that is isolated, limited or relatively minor in nature. There is a significant risk of repetition, the Registrant has not shown good insight, nor has she undertaken appropriate remediation. In the judgement of the Panel a caution would not be appropriate in this case.
78. Having rejected a caution order as a suitable disposal, the Panel next considered whether a conditions of practice order would be appropriate. The factors identified in paragraph 106 of the Sanctions Guidance were addressed by the Panel. It has already been stated that the deficiencies identified in this case are of a type that could be remedied. However, that factor apart, the Panel came to the conclusion that a conditions of practice order would not be appropriate. The relevant factors are:
• The limited insight.
• The hesitation a panel will have in being confident that a registrant will comply with conditions when there has been limited engagement in the process such as demonstrated by the Registrant in this case.
• That no appropriate conditions of practice could be formulated because the information received by the Panel demonstrated that the Registrant had a general problem with the retention and application of knowledge. To protect patients from the risk of harm the Registrant would require to be directly supervised, and the Panel concluded that it would not be appropriate to impose a condition to that effect as it would not permit any aspect of autonomous practice and would in reality amount to suspension.
79. It followed from the rejection of a conditions of practice order as an appropriate sanction that the Panel determined that a suspension order should be made. In all the circumstances of the case, including the serious shortcomings that had not been remedied, the Panel was satisfied that a suspension order represents a proportionate outcome as no lesser sanction would provide the degree of protection from the risk of harm the public has a legitimate right to expect.
80. The Panel determined that the appropriate length of the suspension order it makes is 12 months. In the view of the Panel an order of this length is required to provide the Registrant, who appears not to have worked as a BMS for well over two years, time to reflect on the Panel’s decision and to decide whether she wishes to take steps in order to be permitted to return to practice, and, if she does so decide, to at least begin to take the necessary steps to be permitted to do so.
81. It is a requirement that all suspension orders are reviewed by a panel before they expire. Accordingly, before the 12-month period of the suspension order made in this case expires it will be reviewed. The reviewing panel will have all the sanction powers that were available to the present Panel, and that will include the power to make a further suspension order. The outcome of the review will be a matter entirely for the reviewing panel, and the present Panel in no way would wish to suggest what it should be. However, it is appropriate for the present Panel to suggest to the Registrant some steps she could take if she decides that she wishes to be permitted to return to practise as a BMS. They are:
• Fully engaging in the review hearing (which might be possible by video link).
• Providing evidence of relevant CPD.
• Providing a reflective piece relating to the matters found proved in this case.
• While acknowledging that the suspension order will not permit employment as a BMS, if other laboratory work is undertaken (for example as a MLA), testimonials relating to that work.
82. It is also appropriate to inform the Registrant that although the sanction of striking off was not available at present, and will not be available when the suspension order is next reviewed the power to make a striking off order will exist when a registrant has been continuously suspended (or subject to a conditions of practice order) for a period of two years.

Order: That the Registrar is directed to suspend the registration of Mrs Grace Masih for a period of 12 months from the date this order comes into effect.

Interim Order

Application for an interim suspension order:
(1) After the Panel announced its decision that the sanction is one of suspension, the Presenting Officer applied for an interim order to cover the period during which the Registrant’s appeal rights would be extant.
(2) The Panel was satisfied that it had jurisdiction to consider the making of an interim order because the Registrant was informed that an application for an interim order might be made in the notice of hearing email sent on 29 April 2022. Accordingly, the Registrant had been afforded an opportunity of making representations on the issue of whether such an order should be made.
(3) The Panel considered that it is appropriate to consider this application in the absence of the Registrant. In addition to the facts that required the substantive hearing to proceed in the Registrant’s absence, there is now the additional factor that the Panel has made a finding of lack of competence against the Registrant and that there is a risk of repetition which could result in patient harm. That being the case, the HCPC should be able to make an application for an interim order without further delay. The Panel was satisfied that the application should be considered in the absence of the Registrant.
(4) The Panel approached its decision on whether an interim order should be made by accepting that the default position is that when a substantive sanction is imposed, a Registrant’s ability to practise should remain unrestricted while their appeal rights remain outstanding.
(5) However, in the present case the Panel has concluded that the fact that the risk of repetition presented in this case carries with it a risk to the safety of the public. This has resulted in the Panel concluding that a restriction on the Registrant’s ability to practise during the appeal period is necessary for the protection of members of the public and is also required in the wider public interest. It follows that an interim order is required.
(6) The Panel considered whether conditions of practice imposed on an interim basis would provide an adequate degree of protection and sufficiently maintain public confidence while the Registrant’s appeal rights remain outstanding. However, having carefully considered the matter, the Panel concluded that interim conditions of practice are not appropriate for the same reasons already expressed by the Panel for rejecting substantive conditions of practice as a substantive sanction outcome.
(7) The result of these findings is that the Panel concluded that an interim suspension order is the necessary and proportionate order to make.
(8) It is appropriate for that interim order should be made for a period of 18 months. Such a period is appropriate because the interim order will automatically fall away if the initial 28 day period during which an appeal can be made passes and the Registrant does not appeal, yet if she does appeal it could be 18 months before that appeal is finally determined.

Interim 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.

History of Hearings for Mrs Grace Masih