John Junior Shakes

Preliminary Matters

Documentation

1. The Panel received the HCPC hearing bundle of 303 pages.

2. At the beginning of the hearing, it became apparent that the Registrant said that he had not had sight of the HCPC hearing bundle because he had been unable to access the electronic version. The Registrant was provided with a hard copy of the bundle and given time to read it and he confirmed that he was content for the hearing to proceed.

3. In addition, during the Panel’s deliberation on the facts, the Panel received a copy of an email from the Registrant’s solicitor confirming the dates of his incarceration. This was provided to the Panel with the consent of both parties.

Application for part of the hearing to be in private

4. Mr Smart, on behalf of the HCPC, made an application for the Panel to hear parts of the evidence in private, pursuant to rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”). He told the Panel that this was an application he made jointly on behalf of the HCPC and the Registrant. Mr Smart submitted that it may be necessary for evidence relating to the Registrant’s health and/or private life to be heard during the hearing and it would be appropriate for this to be considered in private.

5. The Registrant agreed with the application. He also submitted that all matters relating to his criminal convictions should be heard in private as in his view, they related to issues in his private life unrelated to his professional work.

6. The Panel received and accepted the advice of the Legal Assessor that the default position is that HCPTS hearings take place in public. However, the Panel may consider whether there is a ground to depart from this principle, as specified in Rule 10(1)(a) of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003, namely for the protection of the Registrant’s private life or in the interests of justice.

7. The Panel was satisfied in this case that it may be necessary to hear evidence relating to health matters and medical evidence concerning the Registrant and it was appropriate that as these matters related to the Registrant’s private life they should be considered in private. The Panel did not consider this would extend to hearing the conviction issues, which were the subject of the allegations, in private as the convictions were matters of public record and absent specific reasons, the principle that allegations should be heard in public applied.

Application to amend the allegations

8. Mr Smart applied to amend a number of particulars of the allegations, as indicated by the parts struck through and shown in bold above.

9. Mr Smart submitted that the amendments sought were intended to clarify the allegations and ensure their accuracy. They made no substantive changes to the allegation and added no new issues. Mr Smart submitted that no prejudice would be caused to the Registrant.

10. Mr Smart also stated that the HCPC intended to offer no evidence in respect of particulars 4(a) and 4(b) because, as the Memorandum of Conviction from Cardiff Magistrates Court indicated, these counts had been withdrawn in the criminal proceedings and subsumed into the other counts as described in 4(c) and 4(d). In respect of particular 8, the HCPC’s evidence was insufficient to support the allegation and so the HCPC did not intend to pursue it.

11. The Registrant was not able to confirm that he had received notice of the proposed amendments. However, he indicated that he had been in receipt of the allegations for some time and he did not object to the amendments sought.

12. The Panel took advice from the Legal Assessor. The Panel accepted that the amendments sought were not substantive but would amend the particulars to improve their clarity and accuracy and include relevant factual details. No new substantive issues were to be added to the allegations.

13. Mr Smart for the HCPC had stated that the HCPC intended to offer no evidence in respect of particulars 4(a), 4(b) and 8. This was, if anything, favourable to the Registrant’s case. The Panel accepted that it would not be proper for the HCPC to pursue allegations which had no prospect of being proved and it was satisfied the allegation as amended was viable and would properly represent the HCPC’s case. The Panel accepted it would in these circumstances formally find these particulars not proved.

14. The Panel considered whether the changes to the allegation would be unfair or cause any prejudice to the Registrant. Given the non-substantive nature of the changes, the Panel did not consider they raised any issue of unfairness or prejudice.

15. The Panel concluded that it was fair and in the interests of justice for the amendments sought by the HCPC to be made.

16. The allegation as amended will be as follows:

FTP56215

As a registered Biomedical Scientist (BS46962) your fitness to practise is impaired by reason of misconduct and/or conviction. In that:

1. On 14 June 2016 you were convicted at Sevenoaks Magistrates’ Court of driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit, contrary to Section 5(1)(a) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act.

2. On 25 January 2017 you were convicted at Maidstone Magistrates’ Court of damaging the paintwork of a car, intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged contrary to Sections 1(1) and 4 of the Criminal Damage Act 1971.

3. On 04 April 2017 you were convicted at Staines Magistrates' Court of:

a. Driving whilst disqualified from holding or obtaining a driving licence, contrary to Section 103(1)(b) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988; and

b. Using a motor vehicle on a road when there was not in force in relation to that use such a policy of insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act 1988, contrary to Section 143 of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic offenders Act 1988.

4. On 31 July 2017 you were convicted at Cardiff Magistrates' Court of:

a. Without reasonable excuse, doing an act on 07 May 2017 which you were prohibited from doing by a non-molestation order, contrary to Section 42A(1) and/or section 42A(5) of the Family Law Act 1996; [HCPC offered no evidence]

b. Without reasonable excuse, doing an act on 18 June 2017 which you were prohibited from doing by a non-molestation order, contrary to Section 42A(1) and/or Section 42A(5) of the Family Law Act 1996; [HCPC offered no evidence]

c. Without reasonable excuse, doing an act between 11 April 2017 and 24 July 2017, which you were prohibited from doing by a non-molestation order, contrary to Section 42A(1) and/or Section 42A(5) of the Family Law Act 1996; and

d. Pursuing a course of conduct which amounted to harassment, contrary to Section 2(1) and/or Section 2(2) of the Protection from Harassment Act 1997.

5. On 19 September 2017 you were convicted at Cardiff Magistrates’ Court of:

a. Driving a motor vehicle while disqualified from holding or obtaining a driving licence, contrary to Section 103(1)(b) of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988;

b. Driving a motor vehicle after consuming so much alcohol that the proportion of it in your breath exceeded the prescribed limit, contrary to Section 5(1)(a) of the Road Traffic Act 1968 and Schedule 2 to Road Traffic Offenders Act 1988; and

c. Using a motor vehicle on a road when there was not in force in relation to that use such a policy of insurance or such a security in respect of third party risks as complied with the requirements of Part VI of the Road Traffic Act 1988, contrary to Section 143 of the Road Traffic Act 1988 and Schedule 2 to Road Traffic Offenders Act 1988.

6. You did not disclose the convictions listed in particulars 1-5 above to your employer, Barts Health NHS Trust.

7. You did not disclose the convictions listed in particulars 1, 3, 4 and 5 to the HCPC in a timely manner.

8. Did not disclose to your employer, Barts Health NHS Trust, that you were subject to fitness to practise proceedings with the HCPC [HCPC offered no evidence]

9. You informed your employer that you were sick between 12 October 2017 and 23 November 2017, during which time you were in fact in prison.

10. Your actions as described at particulars 6-9 above were dishonest.

11. Your actions as described at paragraphs 6-10 above amount to misconduct.

12. By reason of your convictions and/or misconduct, your fitness to practise as a Biomedical Scientist is impaired.

FTP72697

As a registered Biomedical Scientist (BS46962) your fitness to practise is impaired by reason of conviction. In that:

1. On 08 July 2019 at North Kent Magistrates’ Court you were convicted of:

a. Breach of a Restraining Order, contrary to Section 5(5) of the Protection from Harassment Act 1997;

b. Possession with intent to supply Cannabis a Class B drug, contrary to Section 5(3) of the Misuse of Drugs Act 1971; and

c. Breach of a suspended Sentence, contrary to Schedule 12 of the Criminal Justice Act 2003.

2. By reason of your conviction, your fitness to practise is impaired.

The Registrant’s response to the allegations

17. The Registrant admitted the facts alleged in particulars 1, 2, 3(a) and (b), 4(c) and (d), 5 (a), (b) and (c), 6 and 7 of FTP referral 56215. His responses to particulars 9, 10 and 11 were treated as denials.

18. In respect of referral FTP referral 72697, he admitted the facts of particulars 1(a), (b) and (c).

19. The Registrant indicated in giving his plea on the factual allegations that he intended to address the Panel on the circumstances of the convictions at the appropriate stage, if reached.

 

Background

20. At the relevant time, the Registrant was employed as a Biomedical Scientist with Barts Health NHS Trust (“the Trust”).

21. The allegations brought by the HCPC concern a number of criminal convictions received by the Registrant. He is alleged to have failed to declare the convictions referred to in particulars 1,3,4 and 5 (of FTP referral 56215) to the HCPC in a timely manner and to have failed to declare the convictions referred to in particulars 1 to 5 to his employer, the Trust. It is alleged by the HCPC that he has been dishonest in relation to these matters and that he is guilty of misconduct. Particular 1 of referral FTP 72697 refers to a further criminal conviction of 8 July 2019.

22. The HCPC alleges that the Registrant’s fitness to practise is impaired by reason of his criminal convictions and by reason of his misconduct.

 

The HCPC’s evidence

23. The following is a brief summary of the evidence of the HCPC’s witnesses relating to the allegations.

Colleague F

24. Colleague F confirmed her witness statement dated 29 January 2021. She told the Panel that she had worked at the Trust as Chief Biomedical Scientist at Newham Hospital. From 2014 she was the Registrant’s line manager until 2017, when she was absent for a period. Colleague A then acted as his line manager from January 2017. Colleague F confirmed that she had had no concerns about the Registrant’s work performance or work levels and he worked well.

25. Colleague F confirmed that she had interviewed the Registrant for his role and that at that time he had been transparent and had disclosed convictions he had previously received from 1990 and 2001 on the Trust’s declaration form dated 2 April 2015. Colleague F confirmed that the Registrant had not discussed any later convictions with her.

26. Colleague F indicated she had involvement in certain health issues relating to the Registrant in September 2017.

27. Colleague F confirmed that up to September 2017 she was in regular contact with the Registrant as he had been on sick leave and HR had advised she should undertake a weekly catch-up by telephone. As part of the process, the Registrant had submitted sickness certificates and referred to one such form which covered the period 12 October 2017 to 23 November 2017.

28. Colleague F stated that she had also had contact with the Registrant’s ex-partner during the period of his sickness. She confirmed that on 9 November 2017 she had a call from the Registrant’s ex-partner stating that the ex-partner had learned that the Registrant had been in prison following being sentenced for a drink driving offence. The ex-partner thought that he had been sentenced in the Cardiff area and that the prison was in that area and that he had been released on 3 November 2017. Colleague F confirmed that the Registrant had not informed her that he had gone into custody or that he was subject to criminal proceedings. She informed the HR department that she was in possession of a sickness certificate for the Registrant but was now aware that he was incarcerated in prison.

29. In cross-examination by the Registrant, Colleague F confirmed that the fact that he had not informed her of his convictions did not have any detrimental effect on his performance as a Biomedical Scientist in his work.

30. Colleague F thought that the Registrant had returned to work before Christmas 2017, but accepted from the Registrant that it may have been in January 2018.

31. In response to questions from the Panel, Colleague F confirmed that she would expect an employee to inform the Trust of criminal convictions and this was a general obligation on employees of which she would expect that all employees would be aware. The Trust would need to have such information in order to decide how to proceed in the circumstances. She said that, had she been made aware of the Registrant’s convictions, as she had not dealt with such a situation before, she would have referred to HR and sought their advice.

Colleague B (evidence given by video link)

32. Colleague B confirmed his witness statement dated 1 February 2021. He told the Panel that at the relevant time, from February 2016 to August 2019, he was employed as Divisional Manager of Blood Sciences at the Trust. Colleague B stated that he was the manager two levels above the Registrant’s line manager, Colleague F. He had never worked with the Registrant who was deployed at a different hospital.

33. Colleague B said that the Registrant had not told him about any convictions, but said that as he was not the Registrant’s line manager and as he worked at a different hospital site it was unlikely he would have known. No-one else informed him.

34. Colleague B referred to the Trust’s Disclosure and Barring Service Policy, of which he said the Registrant should have been aware. This specifically required that an employee would have “an obligation to inform [his] line manager immediately or a member of the management team if at any time whilst employed by the trust he is convicted of a criminal offence. A failure to do so could lead to disciplinary action being taken”. It continued “…during employment the failure to declare any conviction is considered an attempt to defraud the Trust and is a potential breach of contract”.

35. Colleague B could not confirm when the Registrant was given a copy of the policy. However, he stated it applied to all employees.

36. Colleague B stated that he was not aware of how and when the Trust first became aware of the Registrant’s convictions. He referred to an e-mail from the HCPC dated 26 May 2017 stating that the HCPC was aware that the Registrant had been convicted in June 2016 for a drink driving offence and had received a fine in January 2017 for damage to property. Colleague B confirmed in an e-mail response to the HCPC dated 15 June 2017 that managers at the Trust had not been aware of these matters and therefore no steps had been taken. Colleague B said that this was the first time he was made aware of any convictions concerning the Registrant.

37. Colleague B’s email of 15 June 2017 further confirmed that as a result of fitness to practise concerns, the Registrant was suspended by the Trust on 18 May 2017. Colleague B confirmed that following his e-mail of 5 June 2017 he had no further involvement with the Registrant’s case.

Colleague A

38. Colleague A confirmed the content of her witness statement dated 26 April 2021. She told the Panel that at the relevant time she was Chief Biomedical Scientist at the Trust. Colleague A said she did not work frequently with the Registrant as she worked on day shifts and he worked on nights. She said that the Registrant’s role involved running patient specimens, looking after equipment, providing support to service users of clinical biochemistry at any hospital within the Trust.

39. Colleague A confirmed that she was involved in the interview process when the Registrant joined the Trust and that he was transparent in disclosing his previous convictions at that time.

40. Colleague A confirmed that she was the Registrant’s line manager from 31 January 2017 until July 2017, whilst Colleague F was absent. After that time Colleague F resumed her role as line manager and Colleague A was no longer involved.

41. Colleague A confirmed that she had had no concerns about the Registrant’s work performance in his role.

42. Colleague A said that she was aware that the Trust undertook an investigation when it became aware of the HCPC’s investigation and the Registrant was suspended by the Trust on 12 May 2017.

43. Colleague A confirmed that the Registrant never reported his further convictions to her. She referred to the Trust’s Disclosure and Barring Policy and confirmed her understanding that all employees had a responsibility to inform the Trust of convictions they received.

44. Colleague A stated that she was aware that after his suspension was lifted the Registrant was under medical care and provided sickness certificates. She could not recall the dates and details. She said she was not privy to the details of the Trust’s investigation regarding the Registrant’s criminal convictions as she was no longer his line manager at that time.

45. In cross-examination by the Registrant, Colleague A confirmed that the non-disclosure of his convictions had no impact on his performance at work.

46. In answer to questions from the Panel, Colleague A stated that while she was the Registrant’s line manager she was the person he should have informed of any convictions he received. If she had been absent, it could have been another of the managers.

JO, HCPC Case Manager

47. This witness was not called by the HCPC to give oral evidence and Mr Smart sought to introduce her signed witness statement, dated 6 January 2021, as hearsay evidence. The Registrant initially indicated that he objected to the introduction of this evidence. Mr Smart made an application to admit hearsay evidence. He submitted that this witness’ evidence related to particular 7, which had been admitted by the Registrant, and it was evidence which was essentially factual and uncontentious. After further discussions, it was determined that a redacted version of JO’s statement would be prepared, omitting certain parts of the statement upon which Mr Smart did not seek to rely and which did not relate to particular 7. The Registrant then confirmed he did not object to the introduction of the redacted form of JO’s statement. As the issue was resolved by agreement, the Panel was not required to determine Mr Smart’s application. The redacted witness statement of JO was admitted and read into the record.

48. In her signed witness statement JO stated that she is a case manager in the HCPC Fitness to Practise department. She stated that the convictions in Referral 1 first came to the HCPC’s attention by an e-mail sent by the Registrant on 30 January 2017. In the e-mail the Registrant informed the HCPC that he had been convicted of an offence of criminal damage the previous week and had received a fine. This related to the conviction at Maidstone Magistrates Court on 25 January 2017 for the offence of criminal damage.

49. In the same e-mail the Registrant stated that he had been found guilty of an offence of drink driving in the previous year and had received a three-year suspension from driving. This related to his conviction at Sevenoaks Magistrates Court on the 14th of June 2016. JO stated that the lack of detail provided by the Registrant meant that his details could not be verified by the HCPC nor any action taken in relation to his e-mail of 30 January 2017.

50. In respect of Referral 2, JO stated that whilst the HCPC was investigating Referral 1 it came to the attention of the HCPC that the Registrant was in custody. She referred to an attendance note created by LS, Case Manager, following an incoming telephone call from a person believed to be the Registrant’s case worker in the Offender Management Unit. This was the first time the HCPC was aware that the Registrant was in custody.

51. After further investigation, the HCPC learned that the Registrant was on remand whilst awaiting the fixing of a date for a trial at Maidstone Crown Court.

52. JO stated that the Registrant had disclosed the conviction in particular 1, dated 14 June 2016, in his e-mail of 13 January 2017. This was not disclosed to the HCPC for approximately 7 ½ months and therefore not in a timely manner. The conviction dated 25 January 2017, particular 2, was disclosed to the HCPC in a timely manner.

53. The first time when the HCPC was informed of the convictions referred to in particulars 3, 4 and 5 was in the Registrant’s e-mail of 4 April 2018 which attached a list of all five convictions referred to in particulars 1 to 5 of the allegation. The Registrant’s disclosure in this email in relation to particulars 3, 4 and 5, convictions from April, July and September 2017, was not considered to be in a timely manner.

54. In her witness statement JO included a table setting out details of the certificates of conviction referred to in the particulars of the allegation and of the offences for which the Registrant was convicted.

55. JO referred to the paragraph 9.5 of the HCPC Standards of Conduct Performance and Ethics which states:

“You must tell us as soon as possible if:

- you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence….”

56. JO explained that what constitutes “a timely manner” is not defined in HCPC guidance, but the approach the HCPC consistently adopts is that it should be within the timeframe of “eight weeks to two months”.

57. In summary, JO’s evidence was that the convictions in particulars 1, 3, 4 and 5 were disclosed by the Registrant to the HCPC, but that this was not done in a timely manner.

Particulars 4(a), 4(b) and 8

58. The HCPC offered no evidence in respect of these particulars.

 

The Registrant’s evidence

59. The Registrant gave evidence on oath. The following is a brief summary of his evidence.

60. The Registrant told the Panel that he accepted the conviction matters and could not dispute them, but he would explain the circumstances at the appropriate stage of the process. He said that he would respond to particulars 9 and 10, which he disputed.

61. The Registrant said that he was off on sick leave and this was the occasion when Colleague F took him from work [redacted].

62. The Registrant said that whilst he was incarcerated in HMP Cardiff and away from work, he was simultaneously off sick. He said that Colleague F advised him that there was no way he would be allowed back to work after a month and this was how he ended up being away for six months. He said that officially, he had understood that he was on sick leave.

63. The Registrant told the Panel that this was really not a good period of time for him. Informing his employer had not been his first priority because of the health-related situation he was in. It was not at the forefront of his mind and he did not deliberately withhold the information. He said that he was in fact sick although he was also incarcerated for some of the time.

64. In response to particular 10, the Registrant told the Panel that he did not believe he had told an untruth or been dishonest to the HCPC or his employer. He said that although he did not understand the law, in his view, not doing something was not the same as telling an untruth. He said that the law was not about truth in his experience. He believed what was going on in his life at that time was relevant.

65. The Registrant went on to talk about the circumstances of the convictions in FTP referral 72697 relating to particulars 1(a), (b) and (c). The Registrant said the situation related to one person with whom he had been in a relationship. He said that this ended in what could be described as an unhappy termination. A restraining order had been imposed on him but this was wrong. In his view the restraining order should never have been imposed. There had been no acts of violence involved.

66. The Registrant went on to say that he used to drink a lot at this time and the panel would have “no idea of how much”. He said that at the time, he and his partner had lived above an old lady who would ring the police. He believed that because of his “complexion” matters did not tend to go well for him with the police. The Registrant said that in reality, he and his former partner still get on well and they continue to talk.

67. In cross-examination by Mr. Smart the Registrant was asked why he thought the non-disclosure of the convictions to his employer was not dishonest. The Registrant said that his life had been in turmoil. The only good thing in his life had been work. When he was at work he knew what he had to do and could block everything else out. When he finished work each morning at 08.00 he would go from there straight to the off-licence and then to the next off-licence.

68. The Registrant said he had never been found to have done anything dishonest at work, as Colleagues A and B had acknowledged. They had confirmed that the non-disclosure of the convictions did not prevent him functioning in his role as a biomedical scientist.

69. When asked if he accepted he had had a responsibility to disclose his convictions, the Registrant said that he did. However, he had not set out deliberately not to tell the employer or the HCPC, but he was preoccupied with other things. The Registrant was asked if he accepted that, objectively, a person who has a responsibility to make disclosure and does not is dishonest? The Registrant replied that from a legal standpoint he thought it would be, but in his experience of the courts it was more important to convict than to listen to your truth. He thought that most people would probably say that it was not dishonest.

70. The Registrant acknowledged that when he was recruited by the Trust he had disclosed his earlier convictions. The Registrant said that since then his state of mind had deteriorated a lot and quickly. It was not just related to his personal life but to the stressful issues in his employment. The Registrant said he had been worried that he was reaching a point as he had in 2014 when he had “exploded” at work. [Redacted].

71. The Registrant was referred to the Trust's Disclosure and Barring Policy. The Registrant accepted that it was in place but said that whether he ever laid eyes on it was another thing. He said he did not think people read these types of documents. If the document had been given to him in a bundle of papers then no, he would not have a read it. The Registrant said he accepted what the policy said but could not say whether he had seen it.

72. When asked if he had been aware of a condition in his employment contract, the Registrant said that he would not have read his contract. He did not think he had ever read a contract in his life. He was concerned with being paid and holidays.

73. When asked if it was his evidence that he was not aware that he had to disclose convictions, the Registrant responded that he would have been aware that he was supposed to, but the Panel had to understand his situation at the time and the circumstances of his life meant that he did not do it.

74. The Registrant was asked about the HCPC’s and Standards of Conduct, Performance and Ethics and the requirement to tell the HCPC when a conviction was received as soon as possible. The Registrant responded that he was generally aware but referred back to his previous answers. When asked if he accepted that he did not disclose the convictions in a timely manner the Registrant said that it was necessary to understand the things happened to him and he had tried his hardest to forget about them. He said things had just happened to him, whether deliberately or accidentally. He felt that he had tried to move on from things, but for some reason he was never allowed to. He felt that the situation he found himself in in relation to the convictions had negated his 15 years of professional experience.

75. The Registrant agreed that he did disclose the conviction of 25 January 2017 (particular 2). He said he could not say why he did [redacted]. Work was his only escape because he liked work and it was the way in which he could block things out.

76. When asked why he later did inform the HCPC of all the convictions, the Registrant told the Panel that one side of his head was telling him not to disclose the convictions and the other side was saying “yes, do it”. He said that his then partner, told him “Just do it”. He said that he was not going to do it because he thought “they’ll screw you over”.

77. Mr Smart asked the Registrant if his motive for not disclosing the convictions was that he was worried about losing his job and being “screwed over”. The Registrant replied that it had been, and also was due to his [redacted] health issues at the time. He said that Colleague F had been a good manager because she appreciated his ability to do his job had not been affected.

78. It was put to the Registrant in relation to particular 9 that he was in fact in prison when he had said that he was off sick. The Registrant said yes, but this did not change the fact that he was off sick. He asked if people would really think his employment and the HCPC were his main concerns at a time when he had just been released from a [redacted] ward.

79. The Registrant said that the Trust had pursued him for fraud but subsequently the Trust had been contacted by his solicitor, with an accurate account of the dates of his incarceration. He said that the Trust did not pursue the matter and repaid some of the pay it had previously repatriated.

80. In questions from the Panel, the Registrant was asked about the timeline when he was in prison. He said that he was in Prison for three weeks from 19 September 2017. He was referred to the notice from Cardiff Crown Court confirming the outcome of his appeal against the conviction which stated that his appeal was heard on the 3 November 2017 and this would be the date when he was released from custody following appeal of his sentence. The Registrant said the dates were incorrect.

81. The Registrant told the Panel that if he had received a sick note dated 18 October 2017 when he was out of prison he would have posted it to the Trust. He accepted that he would have sent the sick note, but did not actually recall seeing it or doing so.

82. In completing his evidence, the Registrant said things have happened to him which he could not change but he did not agree that he had been dishonest.

 

Submissions on facts

The HCPC

83. Mr Smart for the HCPC reminded the Panel of the burden and standard of proof. He submitted that the Panel could take account of the Registrant’s admissions to a number of the particulars, but should reach its own conclusions on the evidence.

84. Mr Smart reminded the Panel of the terms of Rule 10(1)(d) of the Rules which deals with criminal convictions and submitted that the convictions were proved by the copy certificates of conviction. They were admitted by the Registrant. Mr Smart further submitted that particulars 6, 7 and 9 were proved by the witness and documentary evidence called on behalf of the HCPC.

85. In relation to particular 10, Mr Smart submitted that the Registrant was dishonest towards the Trust and the HCPC in respect of the matters alleged in particulars 6, 7 and 9. He reminded the Panel of the obligation imposed on HCPC registrants by Standard 9.5 of the HCPC’s Standards of Conduct Performance and Ethics.

86. Mr Smart referred the Panel to the test in the case of Ivey v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent) [2017] UKSC 67. He referred the Panel to the HCPTS Practice Note, Making a decision on a registrant’s state of mind. The Panel was required to decide whether it was more likely than not that the Registrant had behaved dishonestly. Mr Smart submitted that the first element of the Ivey test was established in relation to all three particulars, 6, 7 and 9. He submitted that the Registrant’s evidence is that he knew disclosing the convictions would have an adverse impact on his (the Registrant’s) employment and referred to the Registrant’s evidence when he said he was worried that he would be “screwed over”. It was clear in respect of the second element of the test that ordinary decent people would consider the Registrant’s actions to be dishonest.

87. Mr Smart submitted in conclusion that the Registrant had engaged in artifice in giving his account in evidence. His submission was that the Registrant was aware of his obligations to his employer, the Trust, and to the HCPC, but had chosen to ignore them because of fear of the consequences.

Submissions of the Registrant

88. The Registrant said that he accepted the convictions. He disputed the accusation that he had not disclosed information to his employer and the HCPC because of fear of losing his job: he emphasised that he had not been in a good place and work and the HCPC had been the least of his concerns.

89. The Registrant told the Panel that he does not cope well with stress and that is why his drinking is a problem. He said he has no family or friends and work stops him from getting himself into trouble. He told the Panel that he had “been fine” but had started drinking again at the start of this hearing and that he would probably drink today whilst the Panel considered its decision. In reply to a question from the Panel, he stated that his drinking had not impaired his participation in the hearing or his ability to give evidence.

90. The Registrant told the Panel that he enjoys his job and wants to work as he is able to dissociate himself from everything else in his life. He felt that the HCPC’s pursuit of these allegations prevented him from doing his work and the past matters had become all that he was about. He said the convictions related to issues in his personal life and he considered that he was not in a public role.

 

Decision on Facts

91. The Panel considered the submissions of Mr Smart for the HCPC and those of the Registrant. It accepted the advice of the Legal Assessor. The Panel considered whether the facts were proved according to the civil standard of proof, that is the balance of probabilities. It proceeded on the basis that the burden of proving the facts rests upon the HCPC throughout and the Registrant is not required to prove his innocence.

92. The Panel was referred to the HCPTS Practice notes, Convictions, and Caution Allegations, and Making decisions on a Registrant’s state of mind.

93. The Panel took into account the admissions made by the Registrant (as set out above), but also gave its own careful consideration to the evidence presented by the HCPC and reached its own determinations.

FTP 56215

Particular 1

94. The Panel had sight of a copy of the Memorandum of Conviction from Sevenoaks Magistrates Court which confirmed that the Registrant was convicted of the offence on 14 June 2016 and was sentenced to pay a fine of £400 and disqualified from driving for 36 months. The Registrant pleaded guilty to the offence.

95. The Panel accepted the certificate as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

96. The Panel also took account of the Registrant’s admission.

97. The Panel was satisfied that the facts of particular 1 were proved.

Particular 2

98. The Panel had sight of a copy of the Memorandum of Conviction from Maidstone Magistrates Court which confirmed that the Registrant was convicted of the offence on 25 January 2017 and was sentenced (in summary) to pay a fine of £250.00 and to pay compensation and costs.

99. The Panel noted that the Registrant pleaded guilty to the offences.

100. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

101. The Panel also took account of the Registrant’s admission.

102. The Panel was satisfied that the facts of particular 2 were proved.

Particular 3

103. The Panel had sight of a copy of the Memorandum of Conviction from Staines Magistrates Court, which confirmed that the Registrant was convicted of the offence on 4 April 2017 and sentenced to a Community Order, a requirement to carry out 120 hours unpaid work and to pay a victim surcharge. The Registrant pleaded guilty to the offence.

104. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

105. The Panel also took account of the Registrant’s admission.

106. The Panel was satisfied that the facts of particular 3 were proved.

Particular 4

107. The HCPC offered no evidence in respect of particulars 4(a) and 4(b) The Panel found them not proved.

108. In respect of particulars 4(c) and 4(d) the Panel had sight of a copy of the Memorandum of Conviction from Cardiff Magistrates Court which confirmed that the Registrant was convicted of the offence on 31 July 2017 and sentenced to a restraining order, a community order, and to pay compensation. The Registrant pleaded guilty to the offence

109. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

110. The Panel also took account of the Registrant’s admission.

111. The Panel was satisfied that the facts of particular 4(c)and (d) were proved.

Particular 5

112. The Panel had sight of a copy of the Memorandum of Conviction from Cardiff Magistrates Court which confirmed that the Registrant was convicted of the offence on 19 September 2017 and sentenced a custodial sentence totalling 4 months. The Registrant pleaded guilty to the offences.

113. The Panel accepted this as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

114. The Panel had sight of documents indicating that this conviction was the subject of an appeal by the Registrant which was heard at Cardiff Crown Court on 3 November 2017. As a result of the appeal the conviction remained in place but the sentence was varied to 2 months’ imprisonment suspended for two years and a Rehabilitation Activity Requirement. The Panel had sight of the notice from Cardiff Crown Court dated 23 November 2017 confirming the outcome of the appeal.

115. The Panel also took account of the Registrant’s admission.

116. The Panel was satisfied that particular 5 was proved.

Particular 6

117. It was alleged that the Registrant did not disclose the convictions at particulars 1-5 to his employer, the Trust.

118. The Panel heard evidence from colleagues A, B and F, all of whom were managers at the Trust during the relevant period of time. The Panel found them all to be professional and credible witnesses who gave evidence under affirmation. None of the witnesses displayed any animosity towards the Registrant. Their evidence was clear that they, and the Trust as a whole, were not informed by the Registrant of these convictions. In the light of the evidence, and taking account of the Registrant’s admission, the Panel was satisfied on the balance of probabilities that this particular was proved.

Particular 7

119. It was alleged that the Registrant did not disclose the convictions at particulars 1, 3, 4 and 5 to the HCPC in a timely manner.

120. The Panel received in evidence the redacted witness statement of JO, Case Manager for the HCPC. The Panel was satisfied that this hearsay evidence was from an official, professional source and concerned matters of fact and record. The Panel was satisfied that it could be given significant weight.

121. JO’s evidence was that the HCPC was not informed of these convictions in a timely manner. The Panel noted her evidence that the HCPC interprets this as being a period of approximately eight weeks to two months. The Panel noted that Standard 9.5 of the HCPC’s Standards of Conduct Performance and Ethics requires that the HCPC must be informed of criminal convictions by Registrants “as soon as possible”.

122. The Panel was satisfied that the Registrant having informed the HCPC of the conviction in particular 1 after 7.5 months, and of the further convictions after a considerably longer period, did not amount to doing so “in a timely manner” on either interpretation.

123. The Panel was of the view that an HCPC registrant has an obligation to ensure that they are aware of and comply with the HCPC’s Standards of Conduct, Performance and Ethics. The Panel considered it is widely known that the HCPC as the regulator must be kept informed of such matters, and informed promptly.

124. The Registrant had admitted this particular. In his evidence to the Panel, he accepted he was aware of the obligation to inform the HCPC promptly. The Panel further noted that his prompt notification to the HCPC of the conviction referred to in particular 2, within a matter of days, was a further indication that he was aware of the obligation of prompt disclosure.

125. The Panel was satisfied that particular 7 was proved on the balance of probabilities.

Particular 8

126. The HCPC offered no evidence on this particular. The Panel found it not proved.

Particular 9

127. This particular alleged: “You informed your employer that you were sick between 12 October 2017 and 23 November 2017, during which time you were in fact in prison”. The Panel noted that the dates in the charge were those referred to in a sickness certificate dated 18 October 2017 from the Registrant’s GP, referring to having assessed the Registrant on 12 October 2017. Colleague F had said in her evidence that she received the certificate through the post but did not know who had sent it as she did not recognise the writing on the envelope. It was S, the Registrant’s partner who contacted her on 9 November 2017 and informed her that the Registrant had been in custody.

128. The Registrant denied this particular. His account was that he was sick throughout this period although he was also incarcerated. He appeared not to have a detailed recollection. He said that he thought he “would have” obtained the sick note and sent it to the Trust, but did not expressly recall doing so.

129. The Panel saw documents from Cardiff Crown Court indicating that the Registrant’s appeal against his conviction of 19 September 2017 was heard on 3 November 2017 following which, as a result for the variation of his sentence, he was released from custody. The Registrant disputed that the court documents were correct and asserted that he had been released before this date, spending only “about three weeks” in custody. During its deliberations, the Panel was provided, at the request of the Registrant, with an email dated 9 August 2018, from his solicitor. This confirmed the dates of his incarceration at HMP Cardiff as from 10 October 2017 to 3 November 2017, following the hearing of his sentencing appeal, as indicated on the documentation from the Crown Court.

130. The Panel concluded that on the balance of probabilities, the Registrant was responsible for the submission of the sickness certificate to the Trust, since it related to him, and therefore for informing the Trust that he was sick during this period. The Panel was further satisfied that for some of the period referred to, he was in prison, albeit it appears that he was also sick during this period.

131. The Panel concluded that the facts as alleged in the particular were proved on the balance of probabilities.

Particular 10

132. Having found the found the facts alleged in particulars 6, 7 and 9 proved, the Panel next considered whether the Registrant’s actions in respect of those particulars were dishonest.

133. The Legal Assessor referred the Panel to the test for dishonesty as laid down by the Supreme Court in the case of Ivey v Genting Casinos (UK) Ltd. t/a Crockfords (Respondent) [2017] UKSC 67, in which it was stated that:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of the belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to facts is established, the question of whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

134. The Panel applied the test from the Ivey case in relation to each of particulars 6, 7 and 9.

Particular 6

135. The Panel first considered the Registrant’s actual state of knowledge and belief as to the facts. It noted the evidence of the Trust witnesses referring to the obligation to inform the Trust of conviction matters set out in its Disclosure and Barring Policy and in the contract of employment. The Panel noted that the Registrant had disclosed earlier convictions from 1990 and 2001 on the Trust’s declaration form at the time when he commenced employment with the Trust in 2015 which indicated that he was aware of this obligation.

136. The Registrant had accepted this particular and accepted in oral evidence that he was aware that he should have informed the Trust. However, he told the Panel that he would not have read employment policies provided by the Trust, nor would he have read his contract. The Panel concluded that he was aware he was under a duty to tell his employer about criminal convictions.

137. The Registrant’s evidence to the Panel in response to the dishonesty allegation was that telling his employer about his convictions was not at the forefront of his mind at the relevant times, due to his being unwell [redacted] and due to his high level of alcohol consumption. The Panel concluded this may be evidence relevant to mitigation, should that stage be reached. However, the Panel noted that throughout the time periods following the convictions the Registrant had continued to attend his workplace and carry out his day-to-day duties. During his evidence and submissions to the Panel he repeatedly assured the Panel that his convictions had not affected his ability to carry out his professional duties. The evidence of Colleagues B and F, his managers, to which the Registrant also referred, was that they had had no concerns about his professional performance at work. The Panel was not satisfied that the Registrant’s health or personal issues inhibited his ability properly to inform his employer.

138. The Panel also took account of the Registrant’s account at other points in his evidence that suggested that he took a conscious and deliberate decision not to inform the Trust because of fear of the consequences. He said that when his former partner told him to “just do it”, part of him knew that he should and the other part did not want to do so because he said he knew he would be “screwed over”. The Panel found the Registrant’s explanations as to why he did not disclose his convictions to be inconsistent, but it concluded he was aware of the obligation and had made a conscious decision not to inform the Trust.

139. In relation to the second limb of the Ivey test, the Panel was satisfied that ordinary decent people would consider the Registrant’s actions to be dishonest. The Registrant stated in his evidence that he believed that whilst the law might consider his actions to be dishonest, ordinary members of the public would not. The Panel disagreed with this view.

Particular 7

140. The Registrant admitted this particular. He accepted in his oral evidence to the Panel that he was aware that he should inform the HCPC of his convictions. The Panel noted that he did inform the HCPC promptly of the conviction referred to in particular 2, which also suggested that he was aware of the obligation.

141. The Panel was further mindful that HCPC registrants must be aware of and comply with the HCPC’s Standards of Conduct, Performance and Ethics. It was satisfied that the requirements for a registrant to inform the HCPC, as his/her regulator, of important matters concerning criminal convictions ‘as soon as possible’ are well known. The Panel concluded that it was a matter of common sense that the Registrant would be aware that his professional regulator would need to be informed promptly of matters of such a serious nature. The Panel was satisfied on the balance of probabilities that the Registrant was aware of this obligation and not to comply with it was dishonest.

142. The Registrant’s explanation in his defence was similar to that he gave in respect of particular 6. Again, the Panel concluded from parts of his evidence that not informing the HCPC was a deliberate decision, motivated by self-interest.

143. In relation to the second limb of the Ivey test, the Panel was satisfied that ordinary decent people would consider the Registrant’s actions to be dishonest. The Registrant stated in his evidence that he believed that whilst the law might consider his actions to be dishonest, ordinary members of the public would not. The Panel disagreed.

Particular 9

144. The Panel considered the terms of the allegation and the evidence. The Panel noted that the particular did not allege that the Registrant had wrongfully claimed sick pay for a period when he was in prison, only that he did not inform his employer that he was sick when he was in fact in prison. Although the Panel had found that the Registrant was under an obligation to inform his employer of his convictions, no reference to an obligation simply to tell the Trust that he was in prison had been drawn to the Panel’s attention in the HCPC’s case. The Panel found the evidence inconclusive and unclear. The Panel concluded from all the evidence that during this period the Registrant was sick and that he was also, for some of this period, in prison. The Panel was not satisfied by the HCPC’s evidence that, on the balance of probabilities, applying the Ivey test, the Registrant had been dishonest.

145. The Panel’s conclusion in respect of particular 10 was that dishonesty was proved in respect of particulars 6 and 7. It was not proved in respect of particular 9.

FTP72697

Particular 1

146. The Panel had sight of a copy of the Certificate of Conviction from Maidstone Crown Court which confirmed that the Registrant was convicted of the offence on 8 July 2019 at North Kent Magistrates Court and sentenced at the Crown Court to 4 months’ imprisonment, a Restraining Order for 7 years and an order relating to forfeiture and destruction of drugs.

147. It was not indicated on the Certificate whether the Registrant pleaded guilty to the offences.

148. The Panel accepted the certificate as proof of the conviction and of the findings of fact upon which it was based, as provided for by Rule 10(1)(d) of the Rules.

149. The Panel also took account of the Registrant’s admission.

150. The Panel was satisfied that the facts of this particular were proved.

 

Submissions on ground and impairment of fitness to practise

The HCPC’s submissions

151. Mr Smart referred to the Panel’s findings of fact. He submitted that as the criminal convictions had been found proved, the statutory ground of conviction was established.

152. In relation to the particulars alleging misconduct, Mr Smart acknowledged that the misconduct did not relate to the Registrant’s clinical practice. He referred the Panel to relevant case authorities on the meaning of misconduct. He submitted that particulars 6 and 7 involved withholding information from the employer and the HCPC. Particular 10 involved a finding that the Registrant had made a conscious and deliberate decision to withhold the information which he was obliged to disclose to the HCPC and that he had acted dishonestly.

153. In the light of the Panel’s finding that particular 9 did not amount to dishonesty, Mr Smart told the Panel that he made no submission that the fact proved would constitute misconduct, as in his submission it would not reach the required threshold of seriousness.

154. Mr Smart submitted that when considered in the light of the HCPC Standards at paragraphs 9.1 and 9.5, the Registrant’s actions failed to acknowledge the importance of the regulatory process. He also referred to paragraphs 2.2, 3.1 and 4.4 of the HCPC Standards of Proficiency for Biomedical Scientists. He submitted that the facts found proved represented a serious falling short of the standards expected of an HCPC Registrant and that the Panel should find the grounds of conviction and misconduct proved.

155. In respect of current impairment, Mr Smart’s submission was that the Registrant’s fitness to practise is currently impaired in relation to both the personal and public components. In relation to the personal component, there was no evidence of any attempt by the Registrant to remedy his past actions. In relation to the convictions, remediation may be difficult to demonstrate.

156. Mr Smart submitted that the convictions demonstrated a pattern of repeated criminal conduct, which included breaches of court orders in relation to disqualification from driving and breach of restraining orders relating to ex-partners. He submitted that the Registrant behaved as he saw fit in the face of courts orders and even imprisonment. There was also a pattern of repeated non-disclosure by the Registrant of his convictions and concern about his lack of insight. Although the Registrant had demonstrated some insight into the triggers for his behaviour, this was undermined by its repetitive nature. Mr Smart submitted that these factors indicated a high risk of repetition of similar behaviour in the future and a risk of harm to service users, the public and other road users.

157. In relation to the public component of impairment, Mr Smart submitted that public confidence in the profession would be undermined if a finding of impairment were not made in this case.

The Registrant’s evidence and submissions

158. The Registrant gave evidence on oath in relation to the grounds and impairment of fitness to practise. He answered questions from Mr Smart and the Panel.

159. The Registrant told the Panel that from August to December of 2021 he worked at a diagnostics company based in Guildford. This was a role requiring HCPC registration. It was a short-term contract. The company had a contract to carry out qualitative analysis of Covid vaccines. The Registrant was training up a small team.

160. The Registrant said that he has not worked since December 2021. He has applied for positions but did not get them. However, he told the Panel that his current employment agency has been helpful and positive about his prospects. He was due to start a role in Manchester recently but it took too long to get clearance from the HCPC. He said that the agency has a vacancy waiting for him in Norwich. Everything is in place except they are waiting for a reference. Colleague F has given a reference for his applications and is to give him a reference for the Norwich role.

161. The Registrant told the Panel that when the Government’s “Agenda for Change” was introduced he undertook a "European computer driving licence” at Bridgend College. He referred to Continuing Professional Development (CPD) he has undertaken and said that he has kept up to date. He said he has 16 years’ experience of working in the NHS.

162. The Registrant explained that he has lost opportunities for employment positions because of his convictions. He indicated he felt this was unfair as he has not been convicted of robbery or other serious offences. The Registrant said that the restraining order related to the breakdown of his relationship with a former partner. He told the Panel that in his view the order should have never been imposed as he had not behaved violently to her, and that the breach of this order related to attempts to recover his property from his former partner’s home. He said he is now on good terms with the former partner.

163. In answer to questions from the Panel, the Registrant said that he was not happy that any of these things had happened to him, but they arose from that period of his life when he was in a difficult relationship. He said that this particular former partner was “my nemesis….I was in love with her”. He got to a point where he lived in his car for several months.

164. When asked how he would manage situations differently now, the Registrant said he was “scared stiff” about the future. He said that as a Biomedical Scientist in the workplace, he appreciated his value. He wanted to obtain a haematology qualification and go back to Jamaica to start something in his local village because, he said, there is nothing there. He told the Panel that he did not think he would get into similar situations again. At the time he was transitioning between one relationship and another. He said that another former partner has become a great help and has shown him that the other former partner was toxic for him.

165. The Registrant told the Panel that he had drunk alcohol heavily this week during the period of this hearing after not drinking for months. He said he is now 58 and has decided he has to look after himself physically. He said that the Panel would not believe how much he can drink and that the drink this week “didn’t touch the sides”. He said his doctor cannot believe he is capable of drinking the quantities he does. He said that for him work is like driving a car as it gives him a routine and a structure. [Redacted]. He said he has been very open with his doctor and is able to go and see him when he wants to, but that he is “not an alcoholic” as he can go for some time without drinking and does not drink in the mornings.

166. When asked if there is a risk of repetition of his past actions the Registrant said the period of the convictions was a “crazy time”, but the one thing he had looked forward to was going to work. Regarding the breaches of orders of the court, including driving whilst disqualified and without insurance, the Registrant described that on this particular occasion, he had sat in his room and drunk a litre of vodka [redacted]. He bought another bottle of vodka and then felt he had to get out of the house and so he got into his car and drove. He did not think that he would be here today if he had not done that.

167. When asked how he would feel if he learned that a health professional treating him had behaved in a similar way, the Registrant said he would be understanding and thought that his life experiences gave him a more rounded view of life. In the grand scale of things, he did not think what he had done had affected the public – he referred to other cases he had read about in the press where health professionals had been allowed to work after much worse issues.

168. When asked whether he thought his actions had brought the profession into disrepute, the Registrant said some people would think so, but that most people who were informed of his circumstances would not, as he did not harm anybody nor had he wanted to do so. He told the Panel that “these things happened” to him and he “can’t change them now”.

169. Regarding his decision to withhold information from his employer, he said it was about the stress of knowing about investigations and matters being referred to the HCPC and his being caused more problems when at the time he already had enough problems. He was just trying to get on with things and blocked difficult things out. He said that now he has no stress. He has no relationships. He is trying to stay at home near his daughter. He said that friends try to motivate him to be positive, although he also informed the Panel that his support network is very limited. He wants to convince an employer that although he has had things happen to him in his life, they do not stop him being a good Biomedical Scientist. He informed the Panel that he “needs to work” and said he has invested everything in his job and he knows he is a good Biomedical Scientist. He said that the diagnostics company in Guildford “knew everything”.

170. When asked in cross examination about the rehabilitation order made following his appeal in November 2017, the Registrant said that he went to an organisation in Bridgend but they came to the conclusion he was “not for them”, so had stopped attending. [Redacted]. He said that he does not consider himself an alcoholic because he does not drink continuously or in the mornings although he knows he has a problem. He addresses the issue through friends who support him and by going out to hit a golf ball or going for a walk. He believes he is in a good place now compared to where he was.

171. In conclusion, the Registrant told the Panel that he had read about cases where people had done much worse than him. He said that he enjoys his job and is good at it. It is all he has and if he gets struck off, his life is “over”. The Registrant said that his doctor says he is at a good point now and he wants to get on with his life.

 

Decision on Grounds

172. The Panel considered the evidence and submissions of the parties and accepted the advice of the Legal Assessor. The Panel was referred to the HCPTS Practice Note, Fitness to Practise Impairment.

173. The Legal Assessor referred the Panel to the relevant legal authorities relating to misconduct, including an extract from the judgment in the case of R (on the application of Remedy UK) v General Medical Council [2010] EWHC 124, in which the Court stated:

“(1) Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur out with the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession…

(6) Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that factor may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills.”

Conviction ground

174. In relation to the conviction matters, the Panel was advised that a criminal conviction is a statutory ground of impairment under Article 22(1)(a)(iii) of the Health Professions Order 2001. The Panel having found the conviction proved at the facts stage, this ground was therefore established.

175. In considering its decision, the Panel noted that the Registrant’s convictions involved offences relating to driving with excess alcohol, driving whilst disqualified and without insurance, causing criminal damage to property, possession of and intent to supply cannabis, breaches of a non-molestation order, harassment, breaches of a restraining order and breach of a suspended sentence. The convictions of 19 September 2017 and 8 July 2019 had resulted in the Registrant receiving custodial sentences, indicating the seriousness with which they were regarded by the criminal court. The Panel concluded that the Registrant’s convictions demonstrate wide-ranging and repeated criminal behaviour over a period of years, from 2016 to 2019, made more serious by the repeated instances of disregard of the law and orders imposed by the court.

176. The Panel concluded these matters amounted to a breach of the HCPC Standards of Conduct, Performance and Ethics at Standard 9: Be honest and trustworthy, and Standard 9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

177. The Panel further considered the Registrant to be in breach of the HCPC Standard of Proficiency for Biomedical Scientists, Standard 3.1: Understand the need to maintain high standards of personal and professional conduct”.

Misconduct ground

178. The Panel next considered whether the Registrant’s actions in particulars 6, 7, 9 and 10 amounted to misconduct. The Panel was mindful that this is a matter for its own judgement, rather than the application of the legal standard of proof, and before making a finding of misconduct, the Panel must be satisfied that there had been a serious falling short of the HCPC’s Standards of Conduct, Performance and Ethics.

179. The Panel noted Mr Smart’s position in respect of particular 9 that, given that the facts found proved had not been found by the Panel to constitute dishonesty as alleged in particular 10, they would not reach the threshold of gravity to constitute misconduct. The Panel gave its own consideration to particular 9 and, having done so, agreed with Mr Smart’s position. The Panel therefore found the Registrant not guilty of misconduct in relation to particular 9.

180. In respect of particulars 6 and 7, the Panel had found proved at the facts stage that the Registrant was aware of the obligation upon him to inform his employer about his criminal convictions and of his duty in accordance with the HCPC’s standards to inform the HCPC, as his regulator, about them in a timely manner. The Registrant had admitted that he was aware of these obligations. The Panel had concluded in its findings of fact that these were deliberate decisions by the Registrant, motivated by self-interest, namely his concerns about the impact that disclosure would have on him and his employment. The Panel had found the non-disclosures were dishonest.

181. In relation to the non-disclosure, the Registrant had told the Panel that he did not believe that omitting to do something, as opposed to taking a positive step, was dishonest. He also said that whilst he acknowledged that “the law” would consider his actions dishonest, he thought that members of the public would not view his actions as dishonest. The Panel took the view that the Registrant was misguided in these views and that an informed member of the public would consider the Registrant’s actions to have been dishonest.

182. The Panel considered again the following paragraphs of Standard 9 of the HCPC’s Standards of Conduct Performance and Ethics:

Standard 9: Be honest and trustworthy

9.1: You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

9.5: You must tell us as soon as possible if:

- you accept a caution from the police or you have been charged with, or found guilty of, a criminal offence;

- you have had any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence.

183. In being aware of his duty to inform the Trust of his convictions and deliberately not doing so, the Registrant was not honest and trustworthy towards his employer. Further, the obligation placed upon HCPC registrants by paragraph 9.5 is important. The non-disclosure of these matters to the HCPC as the regulator in a timely manner would have frustrated its ability to regulate the profession and so undermines public confidence and trust in the HCPC.

184. The Panel concluded that the Registrant’s conduct in particulars 6, 7 and 10 fell far below the standards expected and would be regarded as deplorable by fellow professionals. Taking all of these matters into account, the Panel was satisfied that the Registrant’s actions amounted to misconduct.

185. The Panel was satisfied that, whilst the matters leading to the criminal convictions did not arise in direct relation to the Registrant’s professional practice as a Biomedical Scientist, they came within the guidance in the case of R (on the application of Remedy UK) v General Medical Council (as referred to above), namely that they were “conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur out with the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession…” and also as described in that case “(6) Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that factor may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills.”

186. The Panel took the view in respect of particulars 6, 7 and 10 that these were issues directly linked to the Registrant’s registration and employment as a Biomedical Scientist and having been found proved, clearly amounted to misconduct.

 

Decision on Impairment of Fitness to Practise

187. The Panel next considered whether the Registrant’s fitness to practise was currently impaired by his convictions and/or by his misconduct. The Panel received and accepted the advice of the Legal Assessor.

188. The Panel kept in mind that the question of impairment is a matter for its own judgement. The Panel had regard to the HCPTS Practice Note, Fitness to Practise Impairment, which confirms that the purpose of fitness to practise proceedings is not to punish a registrant for past acts or omissions, but to protect the public from those who are not fit to practise.

189. The Panel had regard to the conduct of the Registrant, the nature, circumstances and gravity of the findings and the critically important public policy issues, in particular the need to protect the public, to declare and uphold proper standards of behaviour and to maintain public confidence in the profession.

190. The Panel first considered the personal component of current impairment, that is, the current competence and behaviour of the Registrant. The Panel was mindful that there was no evidence before it of concerns about the Registrant’s clinical practice. In their evidence to the Panel, Colleagues B and F had confirmed that his work performance whilst employed at the Trust was satisfactory. They accepted when questioned by the Registrant that his non-disclosure of the convictions had not affected his work.

191. In relation to the conviction matters, the Panel concluded that the Registrant’s past behaviour of breaching and disregarding the criminal law could be capable of remedy for the future. However, it was not satisfied that the Registrant had taken any steps to achieve this. He had told the Panel that the criminal matters resulted from particular circumstances in his personal life which no longer prevailed and suggested they were not likely to recur. The Panel was not satisfied that this was the case. The Panel took into account that the offences occurred over an extended period of time, from 2016 to 2019. Further, it was evident that the Registrant’s misuse of alcohol had played a significant role in the original offences. The Panel had heard no evidence from the Registrant that he had any definite plan to address this issue. He asserted that he was not an alcoholic [Redacted]. He mentioned when giving evidence that he had, on occasions, attended his GP and discussed his alcohol use, but he produced no medical evidence at this hearing. He maintained that his alcohol use was now under improved control, but he openly told the Panel in his evidence that he had resorted to using alcohol heavily during the week of this hearing as a means of dealing with the stress and would probably continue to do so. The Panel noted that the Registrant had at times stated he has no family or friends, and that work stops him from getting into trouble. However, at other times he has referred to the support of a friend and of his daughter. The Panel concluded that it could not have any confidence that if the Registrant found himself in situations of similar stress in future, he would be able to find appropriate coping mechanisms and would not repeat his offending behaviour.

192. The Panel had heard no evidence of remorse or apology from the Registrant. He had shown minimal insight into the impact of his criminal behaviour on other road users and the public in relation to his driving-related offences, or of the impact of his behaviour on former partners, including harassment, breach of non-molestation orders and criminal damage. He had informed the Panel that he had not harmed anyone by his actions but demonstrated no insight into the risk of harm of his actions. The Panel was particularly concerned about his evidence that after drinking a bottle of vodka whilst distressed he deliberately got into his car and drove in order to “get out of the house”. Furthermore, the Registrant had said that he did not think he would be here now if he had not acted in the way he had done. He indicated no understanding or concern for the safety of other road users.

193. In his evidence, the Registrant had not taken any responsibility for his own criminal behaviour, blaming circumstances, others and the legal system. His evidence to the Panel was that these things “happened to him” and caused problems for him, rather than them being the consequences of decisions he himself had made. He did not acknowledge the possible serious impacts on others.

194. In these circumstances, the Panel could have little confidence that the Registrant would not repeat criminal behaviour in the future and considered that there remains a risk of repetition.

195. In relation to the misconduct findings, the Panel had made a finding of dishonesty. This is an area where it can be difficult to demonstrate remediation. In this case the Registrant had not provided evidence of any attempts to address his past misconduct. Despite confirming that he was aware he should have disclosed the convictions, he did not accept that he had deliberately not done so. Rather, he had said it was an omission, but that this omission was not dishonest. In addition, the Registrant had stated that he thought that most people would probably agree that it was not dishonest. He had not demonstrated any remorse or apology, other than regret as to how the issues leading to these convictions and the fitness to practise process had affected him. He had not demonstrated any understanding of why proper disclosure of criminal convictions is important or why it is required by employers and the HCPC’s standards.

196. The Panel could not be satisfied that the Registrant had meaningful insight into his past actions. In all the circumstances the Panel could not be satisfied there was no, or a low, risk of repetition of his past misconduct in the future.

197. The Panel concluded that the Registrant’s fitness to practise is currently impaired in respect of the personal component.

198. In relation to the public component of current impairment, the Panel has referred to the repeated and wide-ranging nature of the Registrant’s convictions, the long period over which offending behaviour has taken place and the disregard of the law evidenced by the breaches of previous orders of the court. The Panel noted that the Registrant had contended that the convictions only related to issues in his personal life and were not related to his work as a Biomedical Scientist. He also considered that he was not in a public role. However, the Panel considered that an HCPC registrant who holds such a series of convictions undermines public confidence in the profession and in the HCPC as its regulator.

199. The Panel further considered that the Registrant’s dishonest failure to inform his employer of the convictions, and to inform the HCPC promptly, undermined their respective ability to consider the appropriate response. The non-disclosure undermined the HCPC’s ability to fulfil its regulatory function. The HCPC could have been deprived of its ability to assess whether the Registrant’s fitness to practise was in question. This in itself could compromise public confidence in the profession and in the HCPC as its regulator.

200. The Panel concluded that wider public confidence would be undermined in this case if a finding of current impairment were not made. The Panel determined that the Registrant’s fitness to practise is currently impaired in respect of the public component.

201. In relation to risk, the Panel considered that the four factors identified in the legal advice it had received as indicating current impairment. The Panel had seen no evidence of direct risk of harm to patients, in that there have been no concerns about the Registrant’s clinical competence or performance. In relation to the other three factors, the Panel concluded that the Registrant’s convictions and his misconduct have brought the profession into disrepute. He has breached a fundamental tenet of the profession, the requirement to be honest and trustworthy. The Panel further considered that the Registrant has acted in such a way that his integrity can no longer be relied upon.

202. The Panel’s conclusion is that the Registrant’s fitness to practise is currently impaired in respect of both the personal and public components of current impairment.

 

Sanction

203. Following an adjournment on 8 July 2022 due to insufficient time to complete the case, the hearing resumed on 16 and 17 November 2022.

204. When the hearing commenced on 16 November 2022, the Chair referred to the delay in starting the hearing. She stated that this had been due to the necessity to call the Emergency Services to attend the hearing to speak to the Registrant as a result of statements he made to the hearings officers during the morning. [Redacted]. After attendance by the Police who spoke with the Registrant, the Registrant indicated he was ready to proceed and the hearing began at midday.

The HCPC’s submissions on Sanction

205. Mr Keating referred to the HCPC Sanctions Policy. He referred to the Panel’s findings in relation to current impairment and submitted that having regard to those findings, the Panel should conclude that this was a serious case according to the factors in the Sanctions Policy. He drew the attention of the Panel to the sections in the Policy relating to Dishonesty and to Criminal convictions and cautions. Mr Keating reminded the Panel of the purpose of sanctions in regulatory proceedings and of the appropriate approach when considering the issue of sanction.

206. Mr Keating referred to the aggravating factors which he submitted were present in this case, namely repetition of the concerns and a pattern of unacceptable behaviour, and the lack of insight, remorse or apology. Mr Keating reminded the Panel of the paragraph 82 of the Sanctions Policy which reflects the principle in the case of CRHP v General Dental Council & Fleischmann [2005] EWHC 87. This guidance states that where a registrant has been convicted of a serious offence and is still serving a sentence at the time when the matter comes before a panel, normally the panel should not allow the Registrant to resume unrestricted practice until the sentence has been satisfactorily completed. Mr Keating reminded the Panel that in this case, the Registrant will remain subject to a restraining order imposed by the criminal court until September 2026.

207. Mr Keating reminded the Panel of the available sanctions, should it decide that a sanction was required. He said that the HCPC did not intend to make a submission as to the appropriate sanction, as this was a matter for the Panel.

The Registrant’s submissions on sanction

208. The Panel took account of the submissions of the Registrant at the previous stage of the hearing. The Registrant made further submissions which, in part, repeated what he had told the Panel in his earlier submissions. The Registrant spoke at length and the following is not verbatim but is only a summary.

209. The Registrant told the Panel he found it difficult to know what to say. He could only tell the Panel about his personal experiences. He told the Panel that after the adjournment of the hearing in July 2022, he obtained four weeks’ work in Barnstaple as a locum in biochemistry. He said the employer was not concerned about his convictions. He said that he did so well there that he was going to be put on night shifts. He said that then, a senior colleague “felt threatened” by him and that person then searched the HCPC website and discovered that he was subject to these fitness to practise proceedings. He said he was “dismissed there and then”. The Registrant expressed frustration that he had once again, he believed, lost work because of the HCPC proceedings. He said the employer had not been told that he was subject to HCPC fitness to practise proceedings and he was not asked about this. The Registrant said that he had not been able to work since, despite making many applications.

210. In relation to the criminal convictions, the Registrant said that his actions were not deliberate but that “things happened to him” and they were a result of his life circumstances at that time. He repeated that no one had been harmed and that nobody can know what is going to happen next and he did not take the actions intentionally.

211. The Registrant told the Panel there was not one shred of evidence that he had attended work while drunk or that his work had not been satisfactory. He felt it was unfair that his actions in one part of life should be taken to affect his working life. He believed he was able to compartmentalise different parts of his life.

212. The Registrant repeated several times that he is good at his job and he loves his work. He said it is one thing he is good at. He sees how his work affects other people’s lives and the significance of the role he plays. He said that he has not worked for four years and said he was “in pension poverty already”. He went to university in his thirties and he knows he is good at his job. He wants to help society and that is why he talked about returning to Jamaica. He wants to be qualified in haematology in order to be a complete biomedical scientist.

213. In relation to his convictions the Registrant said he felt he had been forced to keep going back over what happened when it had only been a short period of his life. He told the Panel that he did not want to be here, going over all of this again, and none of this “benefited” him. He stated that his drinking is not a physiological issue, it is a psychological issue resulting from his frustration at having a brain and not being able to use it. He felt that what he told the Panel about his drinking at the previous stage of the process had been used against him and it had never affected his work.

214. The Registrant referred again to the circumstances leading to the present restraining order relating to a former partner imposed at the time of his conviction in 2019. He said she did not want the restraining order. He speaks to her every day and they have a good relationship.

215. The Registrant asked the Panel what is he going to do at the age of 59? He said that losing the job at Barnstaple was like having his life ripped away from him again.

216. The Registrant again referred to other cases which he said were more serious than his and referred to reading about a surgeon who left two instruments inside a patient and who was allowed to go on practising. The Registrant said that to strike him off or suspend him was more punishment on top of previous punishment.

[Redacted]

 

Decision on Sanction

217. The Panel took account of the submissions on behalf of the HCPC and those of the Registrant. The Panel accepted the advice of the Legal Assessor and referred to the HCPC Sanctions Policy.

218. In considering sanction, the Panel was mindful that a sanction is not intended to be punitive, nor is a regulatory sanction in respect of a criminal conviction intended to punish the Registrant for a second time. However, a sanction may be necessary in the public interest and may have a punitive effect. The Panel bore in mind throughout that any sanction it may decide to impose must be proportionate, that is, it must only restrict the Registrant’s right to practise to the extent necessary to protect the public and the public interest.

219. The Panel was mindful throughout that the HCPC’s overriding objective is to protect the public. It must consider the risk the Registrant may pose in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest, which includes the deterrent effect on other registrants, the reputation of the profession and public confidence in the regulatory process.

220. The Registrant had attended this hearing at each stage and today, at the sanction stage, had spoken to the Panel at some length and answered questions from the Panel. The Panel wished to acknowledge the Registrant’s participation in this process and it had listened carefully to his submissions.

221. In considering sanction, the Panel first referred to the guidance in the HCPC Sanctions Policy in relation to serious cases. The Panel has found that the Registrant was dishonest by not disclosing his convictions to his employer and to the HCPC as his regulator. The Panel has found this was deliberate deceit, motivated by self-interest. The Registrant failed to show any real understanding of his responsibilities, as a registrant, to the HCPC as his regulator.

222. As referred to in the Panel’s decision at the impairment stage, the Registrant’s criminal convictions involved a range of offences: driving with excess alcohol, driving whilst disqualified and without insurance; causing criminal damage to property; possession of and intent to supply cannabis; breaches of a non-molestation order; harassment; breaches of a restraining order and breach of a suspended sentence. The convictions of 19 September 2017 and 8 July 2019 had resulted in the Registrant receiving custodial sentences.

223. The convictions indicate repeated and wide-ranging criminal behaviour over a period of several years. The pattern of offences demonstrated repeated disregard of the law by the Registrant and breaching of orders of the court. These are offences which are serious when looked at individually, and even more so when looked at cumulatively, as a pattern of repetitive offending behaviour. The Panel was satisfied that a registrant who has been convicted of this pattern of criminal behaviour undermines public confidence in the profession. The Panel also considered that a number of these matters, in particular his actions in driving after consuming alcohol, put members of the public at direct risk of harm.

224. The Panel’s conclusion applying the Sanctions Policy guidance was that the Registrant’s case clearly falls into the category of serious cases.

225. The Panel paid careful attention to the Registrant’s submissions. The Registrant repeatedly told the Panel that he is a good Biomedical Scientist, that he just wants to work and that his work is all he has in his life. The Panel acknowledges that this case has not concerned the standard of the Registrant’s clinical practice as a Biomedical Scientist. However, the Panel was concerned that the Registrant still fails to demonstrate any understanding of the impact of his dishonesty and his criminal behaviour on his profession, his employer, his colleagues and on wider public confidence in the profession. He does not see the link between this behaviour and his status as an HCPC registered Biomedical Scientist. He has referred to being able to “compartmentalise” his actions outside of the workplace and refuses to accept that they have any impact on his profession as a Biomedical Scientist. The Registrant has not demonstrated any understanding that along with the privileges of registration, there are responsibilities. These include complying with the law and being accountable to the regulator. This means being honest and providing the information needed by the regulator, in this case regarding criminal convictions received, to enable it properly to fulfil its function of protecting the public.

226. The Panel concluded that, despite the further time for reflection provided by the adjournment of his case, the Registrant still demonstrates no meaningful insight or willingness to reflect on his past conduct. For example, the Registrant has repeatedly told the Panel that he has chosen not to read fully documents relevant to this case and the Panel’s previous determinations. The Registrant continues not to take responsibility for his own actions and to blame others. Such remorse as he has shown is entirely self-interested. Accordingly, the Panel cannot have any confidence that there is no, or a low, risk of repetition of similar behaviour in the future.

227. Having concluded that this is a serious case, the Panel considered that the following aggravating factors were present:

a. Repetition of concerns in relation to the criminal convictions, and a pattern of unacceptable behaviour;

b. Lack of insight, remorse or apology;

c. Lack of remediation.

228. The Panel considered the following mitigating factors were present:

a. There was no evidence before the Panel of concerns about the Registrant’s clinical practice;

b. The Panel had received one personal testimonial from a friend of the Registrant, dated 14 July 2022. The Panel took this into account, but noted it was not clear if the writer was aware of the allegations in this case;

c. The Panel had heard from the Registrant of some health issues affecting him, but it had received no independent evidence such as medical reports to provide confirmation.

229. The Panel took these factors into account when considering sanction. The Panel concluded it could give limited weight to the mitigating factors and was mindful that mitigation is of considerably less significance in regulatory proceedings where protection of the public is the overarching consideration. The Panel concluded that the gravity of the aggravating factors in this case outweighed the mitigating factors.

230. The Panel considered whether it was necessary to impose a sanction. The Panel had in mind that the allegations proved were serious and that its decision must uphold public trust and confidence in the profession.

231. The Panel concluded that in this case, neither mediation nor taking no action would be appropriate. The Panel determined that a sanction was necessary in the public interest. It considered the sanctions in ascending order of severity.

232. The Panel first considered the factors in the Sanctions Policy in relation to a Caution Order. It concluded that the issues in this case were not minor in nature. This was not an isolated matter, in that it concerned a series of criminal convictions and misconduct, namely dishonesty. No meaningful insight has been shown by the Registrant and no remediation has been undertaken. The Panel could not be reassured that the Registrant will not pose a risk in the future. The Panel concluded that a Caution Order was not sufficient or appropriate.

233. The Panel next considered a Conditions of Practice Order. The Panel concluded that conditions were not appropriate or workable given the serious nature of its findings. The Panel took the view that it would not be possible to formulate conditions to address the past criminal conduct, the dishonesty to the regulator or the public interest concerns in this case. Given the lack of insight, remorse and apology shown by the Registrant during this hearing, the Panel was also not confident that the Registrant would comply with conditions of practice.

234. The Panel considered very carefully whether a period of suspension would be the proportionate sanction, applying the factors in the Sanctions Policy. The breach of the standards in this case was serious. The Registrant had demonstrated no meaningful insight. The Panel could not have confidence that the issues were unlikely to be repeated. The Panel did not consider, given the evidence it had heard from the Registrant and the attitude he has demonstrated during this hearing, that the Registrant is likely to remedy or resolve his past conduct. The Panel concluded that a Suspension Order would not provide adequate protection to the public or the public interest, or would maintain public confidence in the Biomedical Scientist profession.

235. The Panel concluded that the only appropriate and proportionate sanction in this case was a Striking Off Order. Considering paragraph 131 of the Sanctions Policy, the Panel did not believe that the Registrant was willing to resolve matters. It concluded that any lesser sanction than striking off would be insufficient to protect the public and public confidence in the profession and in the regulatory process.

236. Having reached this conclusion, the Panel also took account of paragraphs 82 and 85 of the Sanctions Policy, which reflect the guidance from the Fleischmann case, that where a registrant has been convicted of a serious criminal offence, a panel should not normally allow the registrant to return to unrestricted practice until the sentence has been satisfactorily completed. The Panel noted that the Registrant remains subject to a restraining order until September 2026.

237. The Panel concluded that the Registrant’s criminal offences and dishonesty were fundamentally incompatible with registration as a health professional on the HCPC Register. The Panel concluded that only a Striking Off order would be sufficient to protect the public, the public interest and to uphold public confidence in the profession and the regulatory process.

 

ORDER: The Registrar is directed to strike the name of John Junior Shakes from the Register on the date this Order comes into effect.

Interim order

Application to proceed in absence and application for an interim order

238. Following the final determination of the Panel being announced by the Chair, the Registrant left the hearing without saying anything further.

239. Mr Keating on behalf of the HCPC made an application for the Panel to proceed in the absence of the Registrant as he intended to make an application for an interim suspension order.

240. Mr Keating stated that the Registrant had attended throughout the hearing to this point and had had every opportunity to present his submissions. Mr Keating reminded the Panel that the Registrant had been given notice that an application for an interim order may be made if this stage of the hearing was reached, most recently in the HCPC’s notice informing him of the resumed hearing date, a letter dated 4 October 2022. Mr Keating submitted in the circumstances that the Registrant had voluntarily absented himself and waived his right to be present.

Panel decision on proceeding in absence

241. The Panel accepted the advice of the legal assessor. It referred to the HCPTS Practice Note relating to decisions to proceed in absence.

242. The Panel was mindful that its power to proceed in absence is a discretion which must always be exercised with caution and with the overall fairness of the proceedings at the forefront of its mind. In the present circumstances, the Panel was mindful that its substantive decision to make a striking off order had been made. The Registrant had attended throughout the hearing and had addressed the Panel at each stage. The Panel concluded that at this final stage, having received the Panel’s decision, the Registrant had voluntarily absented himself from the hearing and waived his right to be present.

243. The Panel was satisfied that it was necessary and in the public interest to proceed in absence and hear the HCPC’s application for an interim order.

Application for an Interim Order

244. Mr Keating made an application for an Interim Suspension Order to cover the appeal period, on the ground that it was necessary for the protection of the public and was otherwise in the public interest.

245. The Panel accepted the advice of the Legal Assessor. It bore in mind that an interim order in these circumstances is discretionary. The Panel must consider whether an interim order is required, applying the test set out in Article 31(2) of the Health Professions Order 2001, and if it so decides, must act proportionately. This means balancing the public interest with the interests of the Registrant, and imposing the lowest order which will adequately protect the public.

246. The Panel was referred to the guidance in respect of immediate interim orders in the Sanctions Policy and the HCPTS Practice Note, Interim Orders, of 12 September 2017.

247. The Panel considered the issue of proportionality and balanced the interests of the Registrant with the public interest. The Panel had determined that it was necessary to impose a substantive Striking Off Order. The Panel reached this decision on the basis that it had found a residual risk of harm to the public and to public confidence in the Biomedical Scientist profession and the HCPC arising from the Registrant’s lack of insight into his past dishonesty and criminal conduct and lack of any remediation. The Panel concluded that an interim order was necessary in the public interest, in order to maintain public confidence in the profession. The Panel took into account that the Registrant has been practising until this hearing. However, given the gravity of the issues and the sanction imposed, the Panel considered it would be inconsistent not to impose an immediate interim order of suspension.

248. The Panel considered whether interim conditions of practice would be appropriate, but concluded that conditions which would address the Panel’s concerns could not be formulated.

249. Accordingly, the Panel determined that an interim order of suspension was necessary in order to protect the public and in the wider public interest.

250. The Panel concluded that the appropriate and proportionate duration of the interim suspension order was 18 months, as the interim order would continue to be required pending the resolution of an appeal in the event of the Registrant giving notice of an appeal with the 28-day period.

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 John Junior Shakes

Date	Panel	Hearing type	Outcomes / Status
16/11/2022	Conduct and Competence Committee	Final Hearing	Struck off
04/07/2022	Conduct and Competence Committee	Final Hearing	Adjourned part heard