Kenneth Ugbogu

Preliminary Matters

Proceeding in Private

1. Ms Welsh, on behalf of the HCPC, made an application that, as there was likely to be reference to aspects of Mr Ugbogu’s private life during the hearing, the Panel should go into private session when such matters arose.

2. The Panel accepted the Legal Assessor’s advice. It took account of the HCPTS’ Practice Note entitled “Conducting Hearings in Private”. It concluded that the parts of the hearing which made reference to Mr Ugbogu’s private life should be heard in private under Rule 10(1)(a) of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003, which provides that “proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the health professional … the public should be excluded from all or part of the hearing”.

3. The Panel therefore decided that it would conduct the hearing in public (as was usual) except when reference was made to Mr Ugbogu’s private life.

Background

4. The background to this application for Restoration to the Register is as follows. Mr Ugbogu qualified as a Biomedical Scientist (BMS) overseas in or about 1975. He came to the UK in 2005 and eventually registered as a BMS with the HCPC in or about September 2008. However, he did not immediately commence employment as a BMS until February 2010. In the interim he worked as a Nursing Assistant in a mental health hospital.

5. Concerns arose about Mr Ugbogu’s practice whilst working as a Grade 1 BMS in the Microbiology Department (the department) at Wickham General Hospital (the hospital) within the Buckinghamshire NHS Trust (the Trust) from February to July 2010.

6. Mr Ugbogu was alleged to have made numerous clinical errors in the reading and reporting of various samples from patients, including cervical, urinary, faecal and sputum samples. He was also found to be disorganised in relation to his workload, time management and record keeping. As with all new employees Mr Ugbogu had been working under supervision in the initial period of his employment from February 2010 but after a relatively short period, it appeared to his six supervisors that he would require further time working under supervision. However, Mr Ugbogu's errors, his delays in reporting samples and his general disorganisation continued and his fundamental mistakes and incompetencies seriously concerned the employer. The matters culminated on 7 May 2010 when there was a significant delay by Mr Ugbogu reporting on a blood culture. This caused delay to the treatment of the patient, which could have had serious consequences for them. Mr Ugbogu was then put under the Trust's capability process.

7. Reports from his supervisors revealed a continuation of fundamental errors of reading and reporting by Mr Ugbogu, any of which could have had serious consequences for the patients, by way of a missed diagnosis or treatment by treating clinicians because of his errors. Many of the errors related to microbiological bacteria that were high risk cultures and could have been extremely dangerous for patients if mis-read or unreported. This crystallised on 7 July 2010 when Mr Ugbogu reported and recorded a positive E Coli sample as negative. Fortunately, this was spotted by his line manager, otherwise there could have been extremely serious implications for the patient, and it also raised the possibility of risk to public health in the community. The identified risks to patients as a result of Mr Ugbogu's errors at that stage included septicaemia and renal failure. Moreover, by this time, the level of supervision required for Mr Ugbogu was impacting on the efficiency of the Department.

8. An investigatory meeting took place on 22 July 2010. Whilst further formal investigations into Mr Ugbogu's deficiencies were on-going with a view to a disciplinary hearing, it was considered by the Trust that, for the benefit of public protection, Mr Ugbogu should be suspended. After a full investigation, it was decided by the Trust after a disciplinary hearing on 12 August 2010, that Mr Ugbogu should be dismissed.

9. The matter was referred to the HCPC, which conducted an investigation and which ultimately resulted in the matter coming before a panel of the Conduct and Competence Committee of the Health Professions Council on 5 March 2012. After a hearing, which proceeded in Mr Ugbogu's absence, this previous panel found all but four of the fifty-five Particulars of the Allegation proved.

10. In its written determination dated 7 March 2012, the previous panel summarised its factual findings as follows:

“…the facts found proved in Particulars of Allegation clearly demonstrate the registrant's inability to rectify his clinical deficiencies over a significant period of time. These failings were highlighted by the events that unfolded in this case from near to the beginning of his employment with the Trust in February 2010 and they continued to July 2010. This was despite the input of many members of the Department, over the six month period, into the registrant's identified inability to time manage his case load each day and his many avoidable clinical errors. All members of staff involved in his Induction and later supervision, at all times, were constantly counselling him about his shortfalls, but to no avail. The registrant's intractable approach to his identified poor standards of work resulted in his continuing sub-standard practice, which never improved over the six month period, despite the daily monitoring, advice, counselling and general encouragement provided by all the members of the department involved in his supervision.

Whilst there are many areas of the Particulars of Allegation found proved that have a component of poor competency standards, the Panel is of the view that, especially in light of his years of experience as a BMS, the registrant had the ability to perform those matters raised by this case. This was evidenced by some isolated incidents of good practice. However, the registrant did not address these failings in a way that reflected a competent, safe, insightful and mature practitioner. He appeared to consistently disregard the advice and help offered and given and it is the Panel's view that this demonstrates a fundamental inability on the part of the registrant to reflect on his practice with the object of improvement and safe practice. In failing to meet his deficiencies directly and effectively over a relatively long period of time, the registrant put patients and the wider public community at direct risk of potentially severe harm, the Panel having heard of dangers of septicaemia and renal failure as two examples of the potential risks from the mistakes made by the registrant in 2010. The Panel views this as a reckless disregard for the consequences of his acts and omissions and conduct not compatible with the standards expected of an experienced BMS.”

11. When considering whether Mr Ugbogu was impaired, the previous panel stated:

“The Panel has determined that this case is one involving serious breaches of the profession's standards and is a serious misconduct case; the facts found proved relate to the registrant's reckless disregard of his substandard skills and competence, rather than any personal behaviour. The Panel is of the opinion that these are serious breaches of several fundamental tenets of the profession. In the Panel's opinion, these impacted on patients and the wider public community in that they posed a clear risk to those vulnerable patients who relied on accurate and timely biomedical results for accurate and fast diagnosis by their clinicians. For these reasons, the Panel has determined that the registrant's fitness to practise was impaired at the time of the events.

The registrant has not provided the Panel with any proof of remediation on his part so as to address the failings identified by this case. Therefore, the Panel has no evidence to show that the registrant is no longer a risk to his patients and to the wider public community. His clinical practice in 2010 was deficient in respect of basic reporting, record keeping, time management and organisation of his workload. These are basic clinical failings that go to the heart of Biomedical Science. In addition, the Panel was concerned to learn that the level of knowledge, skill and expertise of the registrant, despite his many years of experience, was described by his colleagues as being at a level below that of a Biomedical Student. These were not isolated incidents and the potential for significant harm to patients and the wider community was very great.

There is no evidence of any safeguard for the existing and future safety of patients and the public if the registrant was to be declared fit to practise today. The Panel is of the view that, if the registrant were found fit to practise today, patients and the public would be at considerable risk from his practices as described in this case and public confidence in the profession and in the regulatory process would be undermined.”

12. The previous panel went on to detail what it found to be the mitigating factors in Mr Ugbogu’s case (namely: he was considered to have a kind and gentle personality by his peers at the Trust; he had engaged “to some extent” in the matter; he had made some admissions; and there were “some health issues” that Mr Ugbogu “stated may have impacted on some aspects of his practice”).

13. It also detailed what it found to be the aggravating factors (namely: the “severe” potential harm to patients; the “extremely high” potential for harm to patients in the future, should there be no remediation; the potential for an “extremely severe risk” to the wider community; the potential harm to his colleagues due to his poor health and safety practices; the fact that Mr Ugbogu had “no insight into his dangerous practices”; the matters were “not of a minor nature”; although Mr Ugbogu accepted advice, he “was not amenable to changing his sub-standard practices”; the level of his failings were of the most basic and below that of a student BMS; the lack of positive references or testimonials to indicate his performance as a BMS since the events in question or from anyone working with him at the time of the events to demonstrate some or any potential for him; the “clear risk of recurrence”; and the fact that these were not isolated matters).

14. In deciding to erase Mr Ugbogu, the previous panel came to the following conclusions:

“The Panel has no information about whether the registrant is working as a Biomedical Scientist and, if so, where and in what capacity. The Panel has no information about whether any employer would be willing and able to monitor and report back to any Review Panel how the registrant was coping with any Conditions of Practice. Thus, in the Panel's opinion any Conditions of Practice could not be workable or enforceable.

Moreover, it is clear to the Panel that the registrant had repeatedly been given guidance on matters of health and safety and how best to change his practice to overcome his deficiencies, but he had not demonstrated an ability to make the changes required to make his practice safe. The Panel was of the view that the evidence from his supervising colleagues revealed an innate inability to change practice. In the Panel's view, this appears to make remedial training unlikely to be a realistic or workable option. Thus, in the Panel's opinion, this would make any Conditions extremely difficult, if not impossible, to structure.

The Panel next considered a Suspension Order. The registrant has been resistant to changing his extremely poor basic practices, despite considerable efforts by those supervising him.

In the Panel's view, the nature of the work of a Biomedical Scientist is such that, if fundamental errors are constantly made and the practitioner requires constant supervision to ensure public safety, as was the situation in this case, then the risk of harm to the public is immediate and the clinical consequences for patents could be severe. Moreover, in the registrant's case, this is a present and continuing danger.

It is the Panel's opinion, by reason of the very grave risk to the public of the registrant's sub-standard practices, it would be inappropriate to allow the registrant to continue practising as a Biomedical Scientist.

In addition, the Panel is concerned that the registrant's poor standards of practice would continue to damage the reputation of the profession and continue to undermine public confidence in the profession and in the regulatory process.

The Panel has determined that public protection and the wider public interest far outweigh the registrant's own interests in this case.

By reason of the level of misconduct in this case and the inability of the registrant to be re-trained, the Panel could not discern any useful purpose in imposing a Suspension Order on the registrant so as to remove him from practice for a defined period of time.

Thus, for these reasons, the Panel has determined to strike off the registrant from the register.”

15. Mr Ugbogu applied to be restored to the Register on 31 January 2023. In subsequent written submissions, Mr Ugbogu stated:

“1 – The allegations against me in the document are true. However, there was a reason behind this poor performance that I did not share with anyone at the time. [Redacted].

2 - I am willing and desirous to undertake further training. The NHS happens to have a unit assisting former employees returning to work after a period of absence with training. I intend to contact that NHS Unit for help should I be re-instated to the Register.

3 – Because Biomedical Sciences is a hands-on profession, I have not been able to practise since I was dismissed from work. However, I have been updating my theoretical knowledge online.”

Oral evidence

16. Mr Ugbogu gave evidence under affirmation. He confirmed what he had said in his written submissions. He had not worked as a BMS since being dismissed by the Trust – he had made attempts to do voluntary work in his local hospital laboratory but “they could not take me on”. He therefore became a Minister in a Pentecostal Church, which continues to this day. He occasionally went online and read standard procedures regarding various areas of Biomedical practice, noting that there were variations between hospitals.

17. [Redacted]. The practise of his religion had made him calmer and helped stabilise his emotions. This would enable him to react differently if there were future pressures.

18. Mr Ugbogu stated that he had applied to return to the Register because he had been approached by a NHS Unit in or around 2020/21 (at the time of the pandemic) inviting him to return to work as a BMS and undertaking to sponsor his retraining. Mr Ugbogu saw this as an opportunity to contribute something so he responded – “I’d be helping the NHS and the public”. However, when it was revealed that he had been struck off, he was advised that he would have to apply to return to the Register, which is how he came to make the application in January 2023.

19. Mr Ugbogu maintained that, whilst he accepted that the findings of the previous panel were correct, the Trust “did not question” his understanding of “the fundamentals of microbiology or the basics – these I have”. He maintained that, whilst he made some mistakes, [Redacted] and also to the constant pressure of being observed by supervisors when he was doing his work. He felt that “someone was always looking for fault” and therefore he was unable to “perform to the optimum”. When asked to comment upon the previous panel’s reference to his clinical deficiencies and him being unable to address his poor competencies, [Redacted].

20. In answer to some questions by Ms Welsh, Mr Ugbogu confirmed that he had not done any online research by looking at textbooks, journals or podcasts, nor had he looked for free on-line CPD courses or webinars. He was aware of the HCPC requirement that if he had been out of practice for more than 5 years he would have to show that he had carried out at least 60 days of practice as a BMS – however, he had not carried this out as he understood that the NHS unit that contacted him would provide him with such retraining.

21. Mr Ugbogu maintained that should he be allowed to return to practice, there would be no areas of BMS practice that he would be worried about working in and he would not be concerned about retraining. He again stated that he was now mentally stable and would not make the same mistakes again. He confirmed that it was difficult for him to discuss domestic issues with someone outside the home but now he would “probably reach out for support…and take a break for a while from work until I was able to practise safely”.

22. Mr Ugbogu confirmed that he understood that his misconduct had negatively impacted upon service users, his colleagues and the public, and gave several examples of how his failures might have affected each of those groups.

23. Finally, when asked by Ms Welsh how he saw his career developing if he were to be restored to the Register and after retraining, Mr Ugbogu stated that he believed that his age (he now being 76 years old) might prevent full time employment but he thought that, as he lived 25 minutes’ walk from his local hospital, he could provide part-time or temporary cover for full time staff there.

24. In answer to some Panel questions, Mr Ugbogu confirmed that he enjoyed working in a collegiate atmosphere and positive feedback from patients. He said that he was aware of the Institute of Biomedical Science (IBMS) but was not a member of it. He was not aware of the study resources they could provide. He had therefore not pursued any of its CPD courses (“I did not think I needed to”). However, confirmed that such courses would be “very useful” and that he would register in the future. However, he said that he would find funding a return to practice course “tricky”.

Submissions

25. Ms Welsh referred the Panel to the HCPTS Practice Note on Restoration and made comments upon the various matters that the Panel was to take into account. She reminded the Panel that the previous panel had found serious breaches of the standards by Mr Ugbogu; an inability to rectify his practice; a tendency to act with “reckless disregard” and a level of practice that was lower than would be expected of a BMS student.

26. Ms Welsh asked the Panel to note that, whilst Mr Ugbogu accepted the allegations and had some appreciation of the effects of his actions upon others, there was still a lack of appreciation of his lack of fundamental competencies, which suggested a lack of full insight. Moreover, there was no evidence that Mr Ugbogu had resolved the concerns about his practice. He had not undertaken the 60 days’ practice that was required; he had not done any supervised training nor had he undertaken any formal or informal study. Moreover, although he said that his personal circumstances were now stable, there was no independent evidence of such and therefore there remained concerns about his ability to handle any difficulties in the future. This lack of evidence of remediation and change therefore raised questions as to whether he was capable of resolving his deficiencies.

27. In conclusion, Ms Welsh confirmed that the HCPC remained opposed to the application. There was no evidence that Mr Ugbogu met the general requirements (especially the requirement for 60 days’ practice) and, as he was essentially still impaired, he was unable to fulfil the requirement that he was a fit and proper person to practise as a BMS. In any event, the Panel was to take into account the three overriding objectives.

28. In his submissions, Mr Ugbogu asked the Panel to give consideration to him being restored to the Register subject to the condition of him doing 60 hours training and asked it to “give me a chance”.

29. In reaching its decision, the Panel took account of the HCPTS Practice Note entitled “Restoration to the Register” and accepted the advice of the Legal Assessor. He reminded the Panel that it should not grant the application unless it was satisfied, on the balance of probabilities, that the Mr Ugbogu (i) met the general requirements for registration; and (ii) was a fit and proper person to practise as a BMS, having regard to the particular circumstances that led to striking off, and which included whether his fitness to practise is currently impaired. On this latter issue, the Legal Assessor referred to the Panel the HCPTS Practice Note entitled “Fitness to Practise Impairment”.

30. Furthermore, the Legal Assessor advised the Panel to consider the following matters:

(i) the matters which led to striking off and the reasons given by the original Panel for imposing that sanction;

(ii) the level of remorse demonstrated and whether the applicant accepts and has insight into those matters;

(iii) whether the applicant has resolved those matters (which includes how well any remediation has been embedded), has the willingness and ability to do so, or whether they are capable of being resolved by the applicant;

(iv) what other remedial or rehabilitative steps the applicant has taken (which includes the applicant’s conduct since being removed from the register);

(v) what steps the applicant has taken to keep his or her professional knowledge and skills up to date;

(vi) the risks of repetition and whether the applicant poses a risk or is safe to resume practice;

(vii) the passage of time since the erasure;

(viii) Finally, whether granting restoration would be consistent with all three aspects of the overarching statutory objective, namely public protection, maintaining public confidence in the profession, and maintaining and promoting proper professional standards.

31. The Panel also took into account the evidence, both written and oral, from Mr Ugbogu and the submissions of both parties.

32. The Panel first considered whether Mr Ugbogu met the general requirements for registration, which included a requirement to have undertaken 60 hours’ practice prior to making the application. It noted that, by his own admission, he had not done this so the Panel was led to the inevitable conclusion that the application failed at the first hurdle and refused it on that ground alone.

33. However, for the benefit of Mr Ugbogu, the Panel did go on to consider whether he was a fit and proper person to practise as a BMS, which required it to assess whether he was currently impaired. It reminded itself that the previous panel found very serious and significant deficiencies in Mr Ugbogu’s practice, so much so that it drew adverse comparisons with the level expected of a BMS student. Moreover, various attitudinal issues were identified, especially a reluctance to improve his practice.

34. The Panel took account of the fact that, prior to working at the Trust, Mr Ugbogu had not practised as a BMS in the UK, notwithstanding his long experience of practice overseas, so he did not have the advantage of an established UK-based practice to fall back on. Moreover, in the interim since he last practised as a BMS in 2010, Mr Ugbogu has not undertaken any significant training, relevant study (apart from a few online articles) or supervised activity as a BMS so his failings apparently remain unresolved. In addition, he has not sought to work in any alternative healthcare setting beyond an informal discussion he had with a manager at his local NHS hospital about three years ago.

35. Moreover, the Panel was concerned that, despite accepting the previous panel’s decision, which included trenchant criticisms of his practice, Mr Ugbogu maintained that the only reasons for his poor performance were due to difficulties at home and the pressures of constant supervision. Mr Ugbogu indicated that, as far as he was concerned, the “fundamentals” and “basics” of his practice were sound, which was in stark contrast to the previous panel’s assessment of his capabilities. Accordingly, the Panel concluded that, although he appeared to have an appreciation of the effect of his failings on service users, colleagues and the public, he appeared still to be in denial about the true level of his practice. Consequently, the Panel concluded that, whilst he demonstrated remorse, Mr Ugbogu lacked full insight into his failings. This in turn led the Panel to conclude that the risks of repetition were high.

36. Accordingly, the Panel concluded that Mr Ugbogu was still impaired and therefore, on the face of it, is not a fit and proper person to be admitted onto the Register at this time. In reaching its decision, the Panel has taken into account all three aspects of the overarching statutory objective, namely public protection, maintaining public confidence in the profession, and maintaining and promoting proper professional standards and unhesitatingly concluded that granting restoration at this time would not be consistent with any of those objectives.

37. The Panel did give consideration to Mr Ugbogu’s suggestion that it grant the application subject to him completing sixty hours of practice but had significant doubts about whether, by itself, this would be sufficient to fully remediate his failings, bearing in mind he had not responded to six months of constant supervision at the Trust and had done nothing to remedy those failings over the past thirteen years.

38. The Panel would, however, say that it appreciated Mr Ugbogu’s sense of public duty in responding to what was apparently a request for assistance by the NHS during a national emergency. Mr Ugbogu also showed a great willingness to undergo further training to remediate his practice but had not yet taken sufficient steps to find appropriate courses and resources to put that into effect. If Mr Ugbogu had spent the last 13 years actively keeping his clinical knowledge up to date and undertaking appropriate CPD and voluntary practice as a BMS or if he had worked in other healthcare settings (as he had before) so that his failings were remedied and full insight developed, then the outcome of this application might have been different.

39. Accordingly, the Panel refuses Mr Ugbogu’s application for Restoration.

ORDER: The Panel refuses the application for restoration to the Register.

No notes available

History of Hearings for Kenneth Ugbogu