Grace Masih

Preliminary Matters

Service

1. The Registrant did not attend the hearing. The Panel was satisfied that the Notice of Hearing was sent to the Registrant at her registered email address on 1 June 2023. A confirmation of delivery was available to the Panel.

2. The Panel notes that the Notice of Hearing sent on the 1 June 2023 contained an error in relation to the year of the Final Hearing, referring to it having taken place this year rather than last year. It contained the date and time of today’s hearing. A fresh Notice of Hearing was sent on 19 June 2023.

3. The Panel was satisfied that service has been effected in accordance with the rules and notes that the Registrant is aware of today’s hearing. She responded to an email from the Hearings Officer, Mr Bridge on 27 June 2023, stating that she would not be attending the hearing.

Proceeding in the absence of the Registrant

4. On behalf of the HCPC, Ms Khan invited the Panel to proceed in the absence of the Registrant. She drew the Panel’s attention to the unequivocal terms of the Registrant’s email which read:

“I do not wish to attend the hearing and have no further interest in this career path”.

5. Ms Khan submitted that the Registrant was clearly aware of the hearing and had decided not to attend. No useful purpose would be served by an adjournment. Moreover, this is a mandatory review, and it is in both the Registrant’s interest, and the wider public interest, for the hearing to take place before the Order expires.

6. The Legal Assessor drew the Panel’s attention to the guidance provided in the HCPTS Practice Notes on ‘Proceeding in the Absence of the Registrant’ and on ‘Postponements and Adjournments’.

7. The Panel considered the advice of the Legal Assessor and the guidance provided in the Practice Notes.

8. The Panel is aware that the discretion to proceed in the absence of a Registrant is one that should be exercised with care and caution. However, the Panel has a primary duty to protect the public. The Panel is satisfied that there had been good service and that the Registrant has decided not to attend today’s hearing. There was no application for an adjournment and in her email the Registrant made it clear that she no longer wishes to work as a Biomedical Scientist (‘BMS’). The Panel concluded that the Registrant had voluntarily absented herself. This is a mandatory review and the Panel has a duty to review the current Suspension Order. The Panel has concluded that it was appropriate to proceed in the absence of the Registrant.

Background

9. The Registrant was employed by Birmingham Women’s and Children’s NHS Trust (“the Trust”) from February 2018 until November 2019. Her employment was as a Band 5 BMS, working in microbiology. The Registrant did not attend the Final Hearing but provided written submissions for the Final Hearing which included the assertion that she had not received adequate training.

10. Before qualifying as a BMS, the Registrant worked for 11 years as a Band 2 Medical Laboratory Assistant (“MLA”). She graduated with her initial degree in 2006, and decided to return to study part-time for what she describes as a “top-up” degree that would enable her to become a BMS. At one stage she dropped out of this further course of study for personal reasons, but subsequently returned to study part time, graduating with the “top-up” degree in 2014. She also completed the Institute of Biomedical Sciences portfolio required for registration as a BMS in 2015 and was in a position to commence her search for a Band 5 post as a BMS, but continued to work as a MLA.

11. The full facts are set out in the decision of the panel which sat on the Final Hearing. In summary, that panel concluded that the Registrant made a number of significant but basic errors which resulted in a Capability Management Process being commenced by the Trust. The capability plan was drawn up at a meeting on 25 February 2019. It was decided that the Registrant should work on the urine bench as this was the most basic, and that she would then be rotated to other benches. A reported lack of overall or sustained improvement resulted in the capability process being escalated through different stages. On 14 November 2019, the Registrant submitted a letter resigning from her employment with the Trust.

12. The Final Hearing panel had a copy of the Registrant’s statement dated 15 March 2021. Amongst other matters, the Registrant complained of the lack of training that had been offered to her. The Registrant’s statement contained acknowledgements that she had made mistakes when working.

13. The Final Hearing panel did not find misconduct but it did find lack of competence. The panel found a number of failings of a similar nature extending over a period of time, including the repetition of the same error. The panel was concerned that the patient relevant to Particular 2 was unnecessarily prescribed antibiotics because of the Registrant’s mistake, and that other errors would have had the potential to result in patient harm had they not been identified by other members of staff.

14. The panel at the final hearing did not find that the failings were minor, but equally it did not find them to be so gross as to require a finding of misconduct. There was no evidence of deliberate or reckless behaviour. The HCPC’s witnesses spoke about the Registrant’s “good attitude towards her work and her desire to improve”. The panel therefore concluded that this was not a case in which it would be appropriate to make a finding of misconduct even taking all of the proven particulars in the round. The panel concluded that the root cause of the Registrant’s difficulties was not attitudinal, but rather a lack of knowledge and skills. The panel found that the Standards of Proficiency for Biomedical Scientists were more appropriate in this case than the HCPC Standards of Competence and Proficiency.

15. Having regard to all the proven particulars, the panel found that the following Standards of Proficiency for Biomedical Scientist were breached:- Standards 1,3,4,9,13 and 12.

16. The panel found that the shortcomings identified were sufficiently wide-ranging in time and type to justify a finding of lack of competence. The panel’s finding of lack of competence had the inevitable consequence that the Registrant’s fitness to practise as a BMS in 2019 was impaired. The panel was satisfied that the shortcomings identified were of a type that were capable of being remedied. That panel found an absence of evidence that they had been remedied and noted from the Registrant’s own written submission dated 15 March 2021, that she had not worked within pathology since she left her employment with the Trust in late 2019, and accordingly that she would not have had the opportunity to address her shortcomings.

17. In terms of insight, the panel found that the Registrant had demonstrated limited insight. It noted that she had not demonstrated an understanding that a professional person should be able to work autonomously, observing that she had a personal responsibility to ensure that she was able to practise safely and effectively. She had not shown that she had taken personal responsibility for what went wrong and sought to explain the errors by reference to external factors, such as lack of training and potential harm to patients:

“The combination of the absence of evidence of steps being taken to remedy knowledge and skills deficiencies, and the very limited insight shown by the Registrant mean that there would be a significant risk of repetition were the Registrant to be permitted to return to practise as a BMS without restriction. This finding has the consequence that the Registrant’s fitness to practise is impaired in relation to the personal component”

18. In relation to the public component, the panel was satisfied that a fair minded and fully informed member of the public would have significant concerns were a BMS to be permitted to practise without restriction in the circumstances. Were no finding made, confidence in the BMS profession and the regulation of it would be diminished. It found that as a panel it would be failing in its duty to declare and uphold proper professional standards and that a finding in respect of the public component was necessary. Having found impairment of the Registrant’s fitness to practise, the panel went on to consider the issue of sanction.

19. In relation to sanction the panel took the following into account:

a. The risk of potential harm to patients.

b. The fact that similar errors were repeated after explanations had been provided to the Registrant.

c. The Registrant’s lack of insight.

d. The absence of any remediation.

e. The high risk of repetition.

20. The panel at the Final Hearing then identified the factors it considered could properly be taken into account on behalf of the Registrant. They were the following:

a. The evidence of the HCPC’s witnesses that during her employment, the Registrant was well motivated and trying to do her best.

b. The Registrant’s written submissions contain acceptances of shortcomings.

c. It has not been suggested that there have been any other regulatory findings against the Registrant.

21. The panel found that a Caution Order was not appropriate because the failings were “not isolated, limited or relatively minor in nature”. In terms of a Condition of Practice Order, the panel found that there was no evidence that the Registrant would comply with conditions as there has been limited engagement in the process and there was a lack of meaningful insight. Appropriate conditions of practice could not be formulated because it appeared that the Registrant had a general problem with the retention and application of knowledge. To protect patients from the risk of harm the panel found that the Registrant would require to be directly supervised, and the panel concluded that it would not be appropriate to impose a condition which would not permit any aspect of autonomous practice. Such conditions of practice would in reality amount to a Suspension Order. It followed that the Panel determined that a Suspension Order represented a proportionate outcome. This would give the Registrant, who had worked as a BMS for over two years “time to reflect on the Panel’s decision and to decide whether she wishes to take steps in order to be permitted to return to practice, and, if she does so decide, to at least begin to take the necessary steps to be permitted to do so”. The panel suggested to the Registrant that if she wished to be permitted to return to practise as a BMS. She might wish to:

a. Fully engaging in the review hearing (which might be possible by video link).

b. Providing evidence of relevant CPD.

c. Providing a reflective piece relating to the matters found proved in this case.

d. While acknowledging that the suspension order will not permit employment as a BMS, if other laboratory work is undertaken (for example as a MLA), testimonials relating to that work.

22. The panel noted that whilst a Striking Off Order was not available it would be available when the Registrant had been continuously suspended (or subject to a Conditions of Practice Order) for a period of two years.

Today’s Hearing

23. The Panel had before it the HCPC bundle. Ms Khan made oral submissions to the Panel. In reaching a decision in respect of this Substantive Review, the Panel has carefully considered the decision of the previous panel. That panel heard all of the evidence.

Submissions on behalf of the HCPC

24. Ms Khan invited the Panel to extend the Suspension Order for a further 12 months. She drew the Panel’s attention to the fact that the Registrant had explicitly stated that she was no longer working as a Biomedical Scientist writing that “she had left the profession”. She submitted that the Registrant had not taken any steps to address the matters identified by the Final Hearing panel. Accordingly, she invited today’s Panel to find that the Registrant remains impaired on both the public and personal component for all of the reasons identified by the previous panel. Ms Khan invited the Panel to consider both the personal and public component carefully. If the Panel determined that the Registrant’s fitness to practise remained impaired, she invited the Panel to consider the Sanction Policy and to consider each sanction beginning with the least restrictive sanction. She repeated that this Panel did not have the power to strike off at this stage.

Legal Advice

25. The Panel accepted the advice of the Legal Assessor. She reminded the Panel that a Substantive Review is a two-stage process. The first task of the Panel is to decide whether the Registrant’s fitness to practise is currently impaired and if so, to then consider what sanction, if any, to impose.

26. The Panel has read the decision of the Final Hearing Panel and has taken into account the submissions of MS Khan on behalf of the HCPC. The Panel has approached its task carefully by adopting a staged process. It notes that it must determine whether the Registrant’s fitness to practise is impaired today, taking into account the Registrant’s conduct at the time of the events and any relevant factors since then, such as whether the Registrant has developed insight, whether the matters are remediable or have been remedied, and any likelihood of repetition. The Panel’s task is not to punish the Registrant for past acts but that it is required to take account of past acts and omissions in order to make an informed assessment as to whether the Registrant’s fitness to practise is currently impaired. The persuasive burden rests with the Registrant to show that she is no longer impaired. The Panel’s role is not to conduct a rehearing of the Allegation nor is it to go behind the previous findings.

27. The Panel has taken into account:

• the ‘personal’ component: the current competence, behaviour, of the Registrant, including any evidence of insight and efforts towards remediation; and

• the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

28. The Panel has considered all the relevant material and has had regard to the HCPTS Practice Notes on ‘Impairment’ and ‘Article 30 Reviews’ and the HCPC ‘Sanctions Policy’.

Decision on Impairment

29. The Panel considered the two components relating to impairment, the personal and the public component. It considered whether the conduct was remediable, whether it had been remedied and whether it was likely to be repeated.

30. The Panel remains satisfied that the conduct is remediable.

31. In terms of the personal component the Registrant has not engaged in a meaningful manner in these proceedings. The only communication from the Registrant states that she has left the profession. In the circumstances, the failures identified at the Final Hearing by the panel and set out in paragraphs 62, 66 and 67 of their decision continue to apply. These are summarised at paragraphs 17 & 18 above. The Panel notes that there were numerous breaches of the Standards of Conduct and Proficiency for Biomedical Scientists, based around lack of competence. It notes that the evidence from colleagues was that the Registrant had a good attitude and tried to improve, whilst working at the Trust. It also notes that the Registrant worked hard to qualify as a Biomedical Scientist and that in her submissions prepared before the final hearing that she acknowledged that she had made errors.

32. Notwithstanding these factors, this Panel’s primary duty is to protect the public and as the Registrant has not worked in a laboratory since 2019, nor has she produced evidence that she has taken any of the steps recommended by the panel at the Final Hearing in paragraph 81 and 21 above, this Panel is compelled to find that the risk of repetition has not diminished. It notes that the errors were significant and basic. This Panel adopts the very full reasons given by the previous panel in paragraphs 65 and 66 of their decision. It notes that there were multiple errors which had the potential to cause harm to the public. Although the Registrant acknowledged this in her written submissions it appears that she attributed the errors to lack of training and by implication she minimised her own responsibility and the impact that her errors had on the public. On the personal component this Panel cannot be reassured that the Registrant has developed further insight. There was no evidence that the Registrant has carried out any work to improve her professional knowledge or that she has completed any further CPD. The Panel cannot be reassured that the Registrant would be able to work autonomously without errors if the Order was lifted. Accordingly this Panel finds that the Registrant has not remedied the failings identified and that she remains impaired on the personal component.

33. In terms of the public component, this Panel echoes the findings set out in the Final Hearing decision and notes that public confidence in the profession of Biomedical Science and in the regulator would be undermined if the Registrant was permitted to return to unrestricted practice. The Panel considers that a reasonable member of the public would be concerned at the prospect of the Registrant returning to work unrestricted. This is because she still has not shown that the public can be reassured that she is competent to read results carefully and without making basic errors.

Decision on Sanction

34. The Panel considered the HCPC’s Sanctions Policy and accepted the advice of the Legal Assessor that a sanction should be the least that is necessary to ensure public protection.

35. The Panel reminded itself that the purpose of a sanction is not to punish the Registrant and that a sanction must be reasonable and proportionate and that it should adopt a staged approach.

36. The Panel finds that it is not appropriate to make No Order, because of the nature of the failings identified by the original panel and the risk of repetition identified above.

37. A Caution Order is not appropriate because the errors did not arise from a single incident. The evidence was that despite a Capability Plan there continued to be errors.

38. The Panel next considered a Conditions of Practice Order. The Registrant did not attend the hearing. There was no evidence that she had begun to take steps to remedy her failings as recommended in paragraph 81 of the original decision. The Panel notes that the Registrant has stated that she has left the profession. There was no evidence that conditions could be formulated which would be workable and realistic. In the circumstances, the Panel could not formulate Conditions of Practice that would provide sufficient public protection, maintain confidence in the profession and which would be workable and enforceable. Accordingly, the Panel concluded that such an order would not be appropriate or proportionate.

39. The Panel next considered a Suspension Order. The panel at the substantive hearing imposed a Suspension Order. The Panel accepts that the Registrant’s failings are remediable. The Panel has determined that this continues to be the appropriate order as there has been no change since the Final Hearing. A Suspension Order is necessary to protect the public and in the wider public interest.

40. The Panel notes that at the moment the Registrant has stated clearly that she does not wish to work as a Biomedical Scientist. The Registrant worked hard over a number of years to qualify as a Biomedical Scientist. A further 12 month suspension Order will give her the opportunity to consider carefully whether she does want to work as a Biomedical Scientist. Should she change her mind, and decide that she does wish to return to her profession, she should refer herself to the steps suggested in paragraph 81 of the previous decision and paragraph 21 of this decision and present evidence of remediation and insight at the next hearing.

41. At the moment, it is not open to the Panel to make a Strike-Off Order, but the Registrant should note that this option will be available on the next occasion should the next panel choose to take this course.

ORDER: The Registrar is directed to suspend the registration of Mrs Grace Masih for a further period of 12 months on the expiry of the existing Order.

The Order imposed today will apply from 4 August 2023

This Order will be reviewed again before its expiry on 4 August 2024.

History of Hearings for Grace Masih