Mrs Maureen Bennie

 

 

1. The Panel has been provided with a Service Bundle. Within the Service Bundle the Panel has seen a Notice of Hearing that was sent by email to the Registrant at her registered email address on 10 February 2023. That email gave details that a hearing would take place on 10 March 2023, and confirmed the mode of hearing. The Panel has also seen a Certificate of Service. 

 

2. Having considered the evidence before it, the Panel is satisfied that the Registrant has been served with proper notice of today’s hearing and therefore, good service has been achieved.

 

 

3. Ms Snookes, on behalf on the HCPC,  made an application to the Panel to proceed in the absence of the Registrant under Rule 11 of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules). Ms Snookes referred the Panel to the HCPC ‘Service Bundle’ and the HCPTS Practice Note on ‘Proceeding in the Absence of the Registrant’. 

 

4. Ms Snookes submitted the Registrant had been served with the Notice of hearing on 10 February 2023 at her registered address and referred the Panel to the delivery receipt in the Service Bundle. Ms Snookes also referred the Panel to an email from the Registrant dated 10 February 2023 in which the Registrant stated:

 

 

5. Ms Snookes also referred the Panel to a further letter from the HCPC to the Registrant which she told the Panel she had sent on 9 March 2023, in which the purpose of this hearing had been again set out and the Registrant had been encouraged to attend and provide any documentation.

 

6. Ms Snookes submitted that this was a mandatory review and that the Registrant had voluntarily absented herself from the hearing and therefore deliberately waived her right to appear. She submitted that in these circumstances the Panel should proceed in the absence of the Registrant.

 

7. The Panel accepted the advice of the Legal Assessor. The Legal Assessor reminded the Panel that it must strike a balance between fairness to the Registrant and fairness to the wider public interest and ensuring that there is an adequate focus on public protection when reaching a decision upon whether to proceed in the absence. He referred the Panel to the case of Adeogba v GMC [2016] EWCA Civ 162.

 

8. The Panel took into account the submissions of Ms Snookes, the documents in the service bundle and the legal advice it received. 

 

9. The Panel took into account the email sent by the Registrant on 10 February 2023 in which she stated that she:

 

a. would not be attending/engaging in the hearing;

b. had no submissions to make;

c. wished to be removed permanently from the register. 

 

10. In those circumstances the Panel concluded that the Registrant had voluntarily absented herself, that she was unlikely to attend if an adjournment were granted and no purpose would be served by adjourning the hearing today. In view of the fact that this is a mandatory review hearing and, having balanced the competing requirements of ensuring fairness to the Registrant, fairness to the wider public interest and the need for public protection, the Panel concluded that the hearing should go ahead today in the absence of the Registrant.

 

 

11. Ms Snookes, on behalf of the HCPC, made an application under Rule 10(1) of the Health Professions Council (Conduct and Competence) (Procedure) Rules 2003 to hold part of today’s hearing in private. She reminded the Panel that the Substantive Hearing had been held in private and that there would be matters raised today that related to the Registrant’s health or private and family life which should be heard in private.

 

12. Having accepted the advice of the Legal Assessor and considered the HCPTS Practice Note on “Conducting Hearings in Private”, the Panel agreed to grant the application, having concluded that the right of the Registrant to protection of her health or private and family life outweighed the general presumption that hearings should be conducted in public.

 

13. The Panel therefore granted the application under Rule 10 1 (a) for part of the hearing to be in private.

 

 

14. The Registrant was employed as a Biomedical Scientist in the Haematology Department by Greater Glasgow and Clyde NHS.

 

15. On 15 July 2019 the Registrant made a self-referral to the HCPC and disclosed that she had been charged with an offence of fraud. In early 2018 the Registrant was contacted by the Police, following a report of fraud by an employee of John Lewis. It was alleged that during the period between 19 October 2017 and 28 December 2018 the Registrant had engaged in ticket swapping and refund fraud and that she had made financial gains of £1660 to the detriment of John Lewis.

 

16. The Registrant entered a guilty plea to the criminal charges. In August 2019 the Glasgow Sheriff Court granted the Registrant an absolute discharge. No penalty was imposed, and no conviction was recorded. The Sheriff took the view that there were exceptional circumstances which justified this course of action, which included the Registrant’s previous good character, repayment of the money to John Lewis.

 

17. The Registrant was also the subject of a disciplinary investigation by her employers who considered that the matters were related to the Registrant’s health at the relevant time. No further action was taken following the outcome at the Glasgow Sheriff Court, and the Registrant’s employer sought to support her through a referral to Occupational Health.

 

18. At the outset of the substantive hearing the Registrant admitted the factual element of the particulars. The Registrant did admit that she had been dishonest and that her conduct amounted to misconduct. The Registrant did not accept that her fitness to practise was impaired.

 

19. The original panel heard no live evidence on behalf of the HCPC. It heard directly from the Registrant and from her manager at the Trust. The original panel was provided with specific legal advice outlining the test for dishonesty as set out in Ivey v Genting Casinos (UK) Ltd [2017] UKSC67. That panel found the entire Allegation proved.

 

20. The original panel accepted that the Registrant had a longstanding health issue. It also took account of the fact that she was a well-respected, competent and committed Biomedical Scientist whose professionalism had been beyond reproach.

 

21. The original panel did make findings that the Registrant was aware that what she was doing was dishonest and was seeking to hide her actions. It took particular note of the fact that she had used a number of different methods to obtain a monetary benefit, and these did not accord with her explanation that the behaviour was motivated solely to return unwanted things and buy replacements.

 

22. As a result the original panel concluded that the Registrant had been dishonest and that this amounted to misconduct. The original panel carefully considered impairment and reached the conclusion although the behaviour had not been repeated and the Registrant had continued to work as a Biomedical Scientist she was nonetheless impaired as she had not fully developed her insight into the reasons for her conduct. It also found that she had not engaged with her significant health difficulties as set out in a report prepared by Dr Bett, a psychiatrist, dated July 2019.

 

23. The original panel considered that there remained a risk that the Registrant would repeat matters of the kind found proved and therefore made a finding of impairment on the personal component.

 

24. The original panel also made a finding of impairment on the public interest grounds following consideration of the legitimate public expectation that that honesty and integrity is a cornerstone of the profession.

 

25. Having identified the aggravating and mitigating factors that could be applied to the Registrant’s conduct the original panel then imposed a Suspension Order of 12 months.

 

 

26. A Substantive Review Hearing of the original Substantive Order took place on 14 September 2022.

 

27. The First Substantive Review panel noted that whilst evidence had been submitted at the substantive hearing to demonstrate insight the previous panel had found the “Registrant had not fully developed her insight into the reasons for her conduct.” The First Substantive Review panel determined that the Registrant had chosen not to provide it with any updated evidence, despite a clear indication as to what would be of assistance in demonstrating insight and remediation. The First Substantive Review panel concluded it had no evidence from which it could determine whether there had been further reflections or progress made by the Registrant in remediating her conduct. It further noted that it had no medical evidence before it that might assist with the paucity of evidence identified by the previous panel at paragraph 60 of its determination.

 

28. The First Substantive Review panel determined that due to the lack of any progress demonstrated by the Registrant in relation to her insight into the reasons for her actions or the seriousness of her conduct there remained a risk that the Registrant may repeat the kind of behaviour that had been found proved. Therefore, the First Substantive Review panel concluded that the Registrant was impaired on the personal ground.

 

29. The First Substantive Review panel gave consideration as to whether the Registrant remained impaired on the public interest component. It concluded that as the misconduct involved dishonesty the public would be concerned to learn of the Registrant’s conduct. It further concluded that, as honesty is a cornerstone of the profession, the regulatory aims of maintaining confidence in both the profession and the regulator and declaring and upholding proper standards would be undermined if it failed to find that the Registrant remained impaired on the public interest ground.

 

30. The First Review panel had regard to the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. It was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

 

31. The First Substantive Review panel took account of the careful analysis of the aggravating and mitigating factors that had been set out by the previous panel. That panel had no additional information before it and did not seek to go behind those findings.

 

32. The First Substantive Review panel rejected the options of taking no further action, mediation or a Caution Order as being inappropriate, given the seriousness of the allegations and the risk of repetition that had been identified at the substantive hearing. It rejected a Conditions of Practice Order as no workable conditions had been proposed to it today.

 

33. The First Substantive Review panel considered whether a Suspension Order should be imposed. In light of the Registrant’s request to be removed from the Register, it also considered whether a striking off order would be appropriate. That panel noted that a striking off order could be appropriate in circumstances where there has been dishonesty but also where the Registrant lacked insight and was unwilling to resolve matters. That panel compared this with the Suspension Order guidance which suggested it may be appropriate where the issues are unlikely to be repeated, there is evidence that the Registrant is likely to be able to remedy their failings and the Registrant had insight.

 

34. The First Substantive Review panel found the factors to be finely balanced but determined that a Suspension Order was appropriate due to the clear potential for remediation, the lack of repetition of any dishonesty, the lack of any issues regarding the Registrant’s professional behaviour and the gap in the medical evidence before it.

 

35. The First Substantive Review panel considered that the length of the Suspension Order should be for 6 months. It determined that this period was sufficient to focus the Registrant’s mind as to whether she would wish to return to a role she has dedicated time and effort into obtaining and maintaining her professional qualifications. It would also allow her sufficient time to demonstrate that she had reflected on her actions and developed insight into them.

 

36. The First Substantive Review panel considered that a future Panel may be assisted by the following:

 

a) any information which evidences a developed level of insight, including an appreciation and understanding of the nature and extent of the dishonesty and a fuller appreciation of the reasons behind it;

b) independent evidence from the Registrant’s GP, counsellor, Psychiatrist or any other treating clinician about the progress she has made and steps she has taken to manage her health; and,

c) the Registrant demonstrating her understanding of the impact her health had on her conduct and how she would avoid any repetition of her dishonesty in the future.

 

 

37. Ms Snookes, on behalf of the HCPC, invited the Panel to make a Striking Off Order, failing which it might consider extending the current Suspension Order for a further 3 months. She reminded the Panel that its role was to conduct a review to decide whether the Registrant’s fitness to practice remains impaired and if so, to determine the appropriate sanction.

 

38. Ms Snookes referred the Panel to the HCPTS Practice Note ‘Review of Article 30 Orders’, the HCPC Sanctions Policy and the decisions of the prior panels.

 

39. Ms Snookes submitted that both the original Substantive Hearing panel and the First Substantive Review panel had made recommendations that the Registrant provide medical evidence in relation to her health, the impact it had on her, her insight and steps she had taken to avoid repetition of similar behaviour to that found proved at the Substantive Hearing. Ms Snookes submitted that the Registrant had failed to do this. She reminded the Panel that there was no independent evidence to show that the Registrant had developed any insight or understanding about the nature of her dishonesty, and the impact that her health had on her actions. Ms Snookes submitted that in these circumstances there remains a risk of the Registrant repeating such conduct and that her practise is therefore still impaired. 

 

40. Ms Snookes further submitted that there was no evidence upon which the Panel could formulate the view that the Registrant had discharged the persuasive burden on her to demonstrate that all the concerns raised in the original finding of impairment have been sufficiently addressed. She submitted that the Panel should make a finding that the Registrant’s fitness to practice remained impaired on both the personal and public component. 

 

41. Ms Snookes submitted that, given the Registrant’s lack of engagement at this or the previous Substantive Review Hearing, the Panel should make a Striking Off Order or alternatively extend the existing Suspension Order for a period of 3 months to allow the Registrant one further opportunity to engage and provide updated evidence on her health and insight.

 

 

42. The Panel accepted the advice of the Legal Assessor. He advised the Panel that its purpose today is to conduct a comprehensive appraisal to determine whether the Registrant is fit to return to unrestricted practice. Its role is not to conduct a rehearing of the allegation nor is it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment. The Legal Assessor referred the Panel to the HCPTS Practice Note on ‘Review of Article 30 Orders’, the Practice Note on ‘Fitness to Practice  Impairment and to the Sanctions Policy.

 

43. The Panel bore in mind the principles of fairness and proportionality and had regard to the Sanctions Policy document issued by the HCPC. The Panel was also aware that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.

 

44. In reaching its decision today the Panel considered all the information before it. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel was also aware that the persuasive burden is upon the Registrant to demonstrate that her fitness to practise is no longer impaired. The Panel had regard to the decision of the Substantive panel and the First Substantive Review panel, however, it comprehensively reviewed the matter and exercised its own judgement in reaching its decision.

 

45. The Panel noted that whilst evidence had been submitted to the panel at the Substantive Hearing to demonstrate insight, that panel had found the ‘Registrant had not fully developed her insight into the reasons for her conduct.’ The Registrant had not provided any such information to the First Substantive Review panel and had again failed to provide any updated evidence to the Panel today, despite the First Substantive Review panel again clearly indicating what would be of assistance in demonstrating insight and remediation. This Panel had no evidence from which it could conclude that there had been further reflections or progress made by the Registrant in remediating her conduct. The Panel further noted that it had no medical evidence before it today that might assist with the paucity of evidence identified by the Substantive Hearing Panel at paragraph 60 of its determination. 

 

46. The Panel noted that the panel at the Substantive Hearing expressed the view that ‘with the development of meaningful insight, dishonesty of this kind is remediable’. The Panel also noted that with regard to the difficulties the Registrant had at the time. The Panel at the Substantive Hearing had found that the Registrant had ‘taken some limited steps to appreciate the effect of these circumstances by accessing counselling’.

 

47. However, the Panel determined that, given the Registrant’s failure to provide any updated information, there remained a risk of repetition of the behaviour found proved and determined that the Registrant remained impaired on the personal ground. 

 

48. The Panel then went onto consider whether the Registrant remained impaired on the public interest component. The misconduct, found proved, involved dishonesty and the Panel considered that the public would be concerned to learn of the Registrant’s conduct in this matter. The Panel concluded that as honesty is a cornerstone of the profession the regulatory aims of maintaining confidence in both the profession and the regulator and declaring and upholding proper standards would be undermined if it failed to find that the Registrant remained impaired on the public interest ground.

 

49. The Panel had regard to the Sanctions Policy (the Policy) and considered the sanctions in ascending order of severity. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the wider public interest, which includes upholding standards within the profession, together with maintaining public confidence in the profession and its regulatory process.

 

50. The Panel took account of the careful analysis of the aggravating and mitigating factors that had been set out by the panel at the Substantive Hearing. The Panel had no additional information before it today and did not seek to go behind those findings.

 

51. The Panel rejected the options of taking no further action, mediation or a Caution Order as being inappropriate given the seriousness of the allegations and the risk of repetition that had been identified at the substantive hearing. The Panel rejected a Conditions of Practice Order as it determined that no appropriate or workable conditions could be formulated that would protect the public or the wider public interest.

 

52. The Panel considered whether the current Suspension Order should be extended. It took into account paragraph 121 of the Policy that states:

 

 

 

53. The Panel determined that, given the lack of any updated evidence from the Registrant, there had been no further development of insight since the Substantive Hearing and that there remained a likelihood of repetition. The Panel further determined that there was no evidence before it to suggest that the Registrant was likely to be able to resolve or remedy her failings. The Panel therefore determined that an extension of the current Suspension Order was not appropriate and would not address public protection or the wider public interest.

 

54. The Panel therefore went on to consider a Striking Off order. It took into account paragraph 131 of the Policy that states:

 

 

 

55. The Panel determined that the Registrant had failed to demonstrate any development in insight and therefore, as of today, the Panel was satisfied the Registrant lacked insight. Further, given the terms of the Registrant’s email to the HCPC of 10 February 2023, the Panel determined that the Registrant was unwilling to seek to resolve matters or address the regulatory concerns identified at the Substantive Hearing. The Panel also noted that, in two emails from the Registrant to the HCPC in the last six months, she expressed the wish to be removed from the Register.

 

56. The Panel therefore determined that, notwithstanding a Striking-Off Order being an order of the last resort, it was the only appropriate and proportionate order in the circumstances that would protect the public and the wider public interest. The Panel took into account the effect that a Striking-Off Order might have on the Registrant. It concluded that any lesser sanction would be insufficient to protect the public, public confidence in the profession and the regulatory process. And that these interests outweighed any interests of the Registrant.