Andrew Mohammed

Preliminary matters

Proof of Service

1. The Panel was provided with confirmation that a Notice of Hearing had been sent by the HCPC on 3 March 2023, to the email address shown for the Registrant on the HCPC register. The Panel noted that the email delivery receipt confirms that the email was delivered at 3:31pm.
2. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time, and venue) of the Conduct and Competence Committee Rules.

Proceeding in Absence

2. Mr Bridges, on behalf of the HCPC, made an application for the hearing to proceed in the absence of the Registrant under Rule 11 of the Conduct and Competence Committee Rules.
3. The Panel was advised by the Legal Assessor and accepted that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant.”
4. The Panel determined that it was fair and reasonable to proceed with the hearing in the absence of the Registrant for the following interrelated reasons:
i. The Panel noted that following receipt of the hearing bundle the Registrant sent an email to the HCPC dated 11 May 2023, in which he stated:
“I have received the hearings bundle
After careful consideration, I have decided not to attend the hearing as I believe it will be detrimental to my mental health (sic)”.

In these circumstances, the Panel concluded that it was fair and reasonable to conclude that the Registrant has voluntarily absented himself from these proceedings.

ii. The Panel also noted that the Registrant had signed a consensual disposal proforma on 19 April 2023 in which he confirmed that he wanted the HCPC to consider his request for Voluntary Removal from the Register. The HCPC has agreed that Voluntary Removal would be an appropriate outcome. Therefore, the purpose of today’s hearing is to consider the signed agreement which is, in effect, a joint application made on behalf of both parties. Given the purpose of today’s proceedings, the Panel concluded that it would be in the Registrant’s interest to proceed with the hearing.

iii. The Registrant has not made an application to adjourn and there is no indication that even if the case were to be adjourned that he would be willing to attend on any future date. Therefore, an adjournment would serve no useful purpose.

iv. Any disadvantage to the Registrant is limited as he has made it clear in his communications with the HCPC that he wishes to be removed from the Register.

v. It is in the wider public interest that this hearing commences and proceeds expeditiously.

Background

5. The Registrant is a registered Biomedical Scientist.
6. In or around 1 September 2012, the Registrant began employment as a Band 5 Biomedical Scientist in the Histopathology laboratory at Wye Valley NHS Trust (‘the Trust’). Around December 2013, the Registrant was promoted to a Band 6 Biomedical Scientist. His employment with the Trust was terminated on 3 October 2022 due to ill-health.
7. The Registrant’s competency became a pronounced issue in 2018 due to staff changes and an increase in the Histopathology department workload. Following a long-term sickness episode in 2018, the Registrant underwent a competency review upon his return to work to ensure that he was fit to practise. The Registrant was on limited duties during this review. However, concerns were raised by colleagues in relation to the Registrant’s microtomy preparation and record-keeping in particular, such as his failure to correctly trim and cut samples, and his failure to accurately label samples and complete temperature logs.
8. Due to a change in management and gaps between performance reviews, an informal capability process was started in 2019. This was then paused between February – April 2019 as the Registrant had suffered a bereavement. The process re-commenced in June 2019 where further concerns regarding the Registrant’s practice came to light. The Registrant had a further period of absence in 2020. In February 2020, an Occupational Health assessment was conducted. The report concluded that the Registrant was fit to participate in all normal departmental procedures. A letter from Health at Work dated 18 March 2020 confirmed that the Registrant was unable to return to work.
9. A formal capability process commenced in July 2020, with Stage 2 of the process commencing in November 2020. However, the process was delayed following advice to obtain further Occupational Health advice in order to ensure that appropriate adjustments were in place. The Registrant was placed on special leave in or around June 2021.
10. Following the period of special leave, the Registrant commenced a period of sickness absence on 9 September 2021. The Registrant made an application for ill health retirement which was refused, and the Registrant returned to work where further concerns regarding the above areas remained. The Registrant then had a further period of absence between March - October 2022.
11. At the Stage 3 formal sickness hearing on 3 October 2022, the Trust terminated the Registrant’s employment on the grounds of capability (ill-health). The Registrant had not been practising as a Biomedical Scientist since September 2021 due to illness.
12. At its meeting on 20 April 2022, the Investigating Committee (‘IC’) of the HCPC determined that there was a case to answer in relation to an allegation of impairment of the Registrant’s fitness to practise. The Panel confirmed the following allegations:

As a registered Biomedical Scientist (BS39486) your fitness to practise is impaired by reason of lack of competence and/or health. In that:
1. Between January 2019 and February 2020, you incorrectly handled samples in that;
a. Between 10 January 2019 and 6 June 2019, you improperly trimmed samples and did not complete the Microtomy preparation.
b. Between 20 May 2019 and 27 February 2020, you incorrectly cut and/or did not cut the samples to an appropriate depth.
c. Between 28 May 2019 and 7 February 2020, you incorrectly and/or did not label the samples produced.
d. Between 2 July 2019 and 6 February 2020, you did not correctly record and/or complete a temperature log for the samples.
2. You have a physical and/or mental health condition as set out in Schedule A.
3. The matters set out in Particular 1 amount to lack of competence.
4. By reason of your lack of competence and/or health your fitness to practise is impaired.

Schedule A:
[redacted]

13. Following the outcome of the IC, Kingsley Napley LLP was instructed by the HCPC to conduct an investigation in relation to the allegation detailed above. The HCPC reviewed the case and considered the circumstances suitable for disposal by way of Voluntary Removal Agreement as the Registrant admitted the substance of the allegations and that his fitness to practice is impaired.
14. On 9 August 2022, the Registrant confirmed via email that he would like to be voluntarily removed from the Register.
15. On 18 August 2022, the Registrant returned a completed Consensual Disposal Request Pro-Forma. Within the pro-forma, the Registrant admits to the facts of the allegation and that his fitness to practise is currently impaired by reason of his lack of competence and/or health.
16. The HCPC signed the Voluntary Agreement on 18 April 2023 and the Registrant signed it on 19 April 2023. On 21 March 2023, Kingsley Napley LLP received the signed Voluntary Removal Agreement from the HCPC.
 
HCPC Submissions

13. Mr Bridges, on behalf of the HCPC, submitted that the VRA is an appropriate means of resolving the case against the Registrant. He adopted the content of the HCPC’s skeleton argument during his oral submissions. However, in addition, he drew the Panel’s attention to the guidance on Dual Allegations.
14. The HCPC submitted that disposing of the matter by way of voluntary removal from the Register would be a fairer and less stressful method of concluding the matter for both the Registrant and also the prospective HCPC witnesses. It was further submitted that it is in the Registrant’s best interests for the conclusion of this matter to be expedited, particularly as ill-health, are prominent features of this case. The HCPC submitted that the Registrant has demonstrated a clear and settled intention not to return to practise as a Biomedical Scientist and has demonstrated insight into his ill-health and performance.
15. The HCPC submitted that the VRA would ensure public protection and maintain public confidence in the profession. It was further submitted that voluntary removal would not be detrimental to the wider public interest.

The Panel’s Approach

16. Although there were no written submissions from the Registrant, the Panel took into account the communication between the HCPC and the Registrant. The Panel also took into account the signed agreement itself, and the numerous Occupational Health reports prepared on various dates between 2018-2022.
17. The Panel noted that a VRA is an agreement between the HCPC and the Registrant. The principle terms of the agreement are that the HCPC will apply to withdraw the Allegation on the basis of a signed request by the Registrant to be removed from the Register, and a commitment that the Registrant will cease and desist from practising and will not attempt to re-join the register within a period of 5 years. There is no express provision for consent agreements, such as disposal of a matter by Voluntary Removal, under The Health Professions Order 2001. However, the HCPTS has produced a Practice Note that the HCPC has approved as a means of allowing matters, where suitable, to be disposed of by consent. This Practice Note states that a Panel should not agree to resolve a case in this way unless it is satisfied that:
i. The appropriate level of public protection is being secured; and

ii. That doing so would not be detrimental to the wider public interest.

18. On the advice of the Legal Assessor, the Panel considered the criteria for a VRA. The Panel noted that Article 11(3) of the 2001 Order and Rule 12(3) of the HCPC Rules, prevent a Registrant from seeking to resign from the Register whilst subject to an Allegation, a Conditions of Practice Order, or a Suspension Order.
19. The Panel took into account the guidance contained within the HCPC Practice Note: Disposal of Cases By Consent which, in respect of Voluntary Removal states that:
“In cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was permitted to resign from the Register it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.”

20. The Panel also took into account the guidance note on Dual Allegations – revised version June 2021.

Decision

21. The Panel noted that the VRA mirrors the terms of a Striking Off Order, as it would prevent the Registrant from practising as a Biomedical Scientist, using any title associated with that profession and would prevent him from making an application to be re-admitted to the register within 5 years.
22. The Panel noted that the Registrant’s lack of competence and/or adverse health would not result in a Striking Off Order at a substantive hearing. At most a Suspension Order would be imposed for a specified period with a review. However, the Panel was satisfied that the circumstances of this case meet the underlying purpose of removal by consent, which is to avoid unnecessary substantive hearings, in circumstances where the public interest can be met by a consensual disposal.
23. The Panel went on to consider whether acceptance of the VRA would provide adequate public protection and whether it would be detrimental to the wider public interest.
24. The Panel noted that if it was not satisfied that removal would adequately protect the public interest, the proposed voluntary agreement would have to be rejected, which would mean that the case will proceed towards a substantive hearing before a differently constituted panel of the Conduct and Competence Committee.
25. The Panel considered the Registrant’s own interests. Based on the documentary evidence and the views expressed by the Registrant, the Panel was satisfied that there was sufficient evidence to support a finding of current impairment of fitness to practise. The Panel noted the Registrant’s performance and health issues and his clear and settled intention not to return to practise as a Biomedical Scientist. The Panel noted that the Registrant has been provided with detailed information about the consent process and the effect of voluntary removal from the Register, should the application be granted. The Registrant has also had time to review this information and query its implications with HCPC. In these circumstances, the Panel was satisfied that the Registrant is fully aware of the consequences of voluntary removal and has willingly entered into the agreement with the HCPC.
26. In considering whether removal of the Registrant’s name from the Register is in the interests of the public the Panel noted that his lack of competence and ill-health have the potential to cause harm to patients. Clinical skills, record keeping and timeliness are fundamental to safe and effective practice as a Biomedical Scientist. For a significant period the Registrant was unable to work at an appropriate level. The shortcomings in the Registrant’s practice inevitably raised patient safety concerns which have the potential to cause harm to patients and undermine public trust and confidence in the profession.
27. Furthermore, there is no countervailing public interest in refusing the request for VRA. Therefore, disposing of this case by way of consent would not be detrimental to the wider public interest. In reaching this conclusion the Panel noted that the Registrant has demonstrated insight into his ill-health and poor performance. In particular, he has acknowledged that there were areas of deficiency in his professional practice, he engaged with the Trust’s Capability process and underwent various periods of re-training. He also followed all medical advice and has been compliant with treatment and medication.
28. In all the circumstances, the Panel concluded that approval of the proposed VRA is both proportionate and appropriate. The Panel also determined that there is a legitimate public interest in avoiding a substantive hearing and any subsequent review hearings, in circumstances where the Registrant has expressed a clear desire to be removed from the Register and has accepted that his practice is impaired. Furthermore, in the light of the particular health aspect of this case, the Panel concluded that the VRA is the proportionate approach to take.
29. Therefore, the Panel consented to the VRA and was satisfied that the professional disciplinary proceedings should be withdrawn.

ORDER: The Registrar is directed to remove the name of Mr Andrew Mohammed from the Register with immediate effect.

No notes available

History of Hearings for Andrew Mohammed