Kumarini Fonseka
Profession: Biomedical scientist
Registration Number: BS67247
Hearing Type: Final Hearing
Date and Time of hearing: 10:00 08/01/2024
End:
17:00 26/01/2024
Location:
Virtually via Video Confernece
Panel: Conduct and Competence Committee
Outcome: Struck off
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Allegation
As a registered Biomedical Scientist (BS67247) your fitness to practise is impaired by reason of misconduct and/or lack of competence. In that:
1. On 1 August 2018, you:
a) inappropriately shared the results of a test that were subject to verification;
b) shared the results as outlined in paragraph 1a above despite being told by colleague A that there was a potentially erroneous result, and this should not be shared until verified;
c) used colleague A’s computer to view the results and intended to authorise the results logged in as colleague A.
2. On various dates between 2016 and 2018, you did not take sufficient time in reviewing blood films.
3. On various dates between 2016 and 2018 you did not follow laboratory procedures when:
a) Working with reagents.
b) Conducting quality control checks.
c) Storing bone marrow samples.
4. On 20 March 2019, you:
a) Used the analyser unsupervised when you had not been signed off in this skill.
b) Used the analyser for a sample which had already been tested.
c) The action at 4(b) was against management instructions.
5. On 2 April 2019, you:
a) Used the coagulation analyser unsupervised when you had not been signed off in this skill.
b) Ignored a low reagent warning sign on the coagulation analyser.
6. On 30 September 2019, you performed a manual differential count in which you;
a) Did not differentiate between lymphocytes and neutrophils.
b) Did not look at the patient history.
7. On 18 November 2019, you reviewed a blood film and you;
a) Did not record the presence of abnormal cells and / or;
b) Did not record the presence of blast cells.
8. The matters set out at allegation 1 to 7 above constitute misconduct and/or lack of competence.
9. By reason of your misconduct and/or lack of competence, your fitness to practise is impaired.
Finding
Preliminary Matters
1. At the commencement of the hearing the Panel agreed with the suggestion of the parties that this is a case in which it would be appropriate for the Panel to reach and announce its decisions on the factual allegations before proceeding to consider any of the further stages that would need to be addressed in the event of facts being found proved. After the Panel announced its decision on the facts, it was decided that the statutory grounds would be decided as a discrete issue. Subsequently, after the Panel determined that a finding of misconduct should be made, impairment of fitness to practise was addressed.
2. When invited to respond to the allegation, Ms Robinson indicated on behalf of the Registrant that the following elements of the allegation were admitted, namely: 4(b) & (c), 6(a) and 7(a) & (c).
3. Immediately before the close of the HCPC’s case, the Presenting Officer applied to amend the date of Particular 7 from 17 November 2019 to 18 November 2019. This application was made because the evidence disclosed that, although the relevant sample was prepared on 17 November 2019, it was not reviewed by the Registrant until 18 November 2019. No objection to this application was made on behalf of the Registrant. The Panel was satisfied that it was an appropriate change to make and would not result in prejudice to the Registrant. Accordingly, the Panel acceded to the application. It was acknowledged on behalf of the Registrant, that the admission to the Particular stood after the change of date.
4. Following the close of the HCPC’s case, Ms Robinson made a submission on behalf of the Registrant that there was no case to answer in relation to Particulars 2 and 3. Ms Robinson acknowledged that there was some evidence tendered on behalf of the HCPC in relation to those Particulars, but the fact that the evidence was general, unspecific as to dates or occasions, unsupported by contemporaneous recording, all meant that the evidence could not properly support a finding against the Registrant. The Panel considered this application, but did not accede to it. The Panel concluded that the evidence it had received, particularly that of Colleague A and Mr RS, was not so unsatisfactory that it could be said that there was no prospect of the matter being proved.
Background
5. The Registrant was first registered with the HCPC as a Biomedical Scientist (“BMS”) in 2014. After other periods of work, in October 2016 she was employed as a Band 5 BMS in Haematology and Blood Transfusion at the Queens Hospital, Burton (“the Hospital”). She remained in that employment until June 2020. The allegations being considered by the Panel concern her professional performance in that employment.
Decision on facts
6. The HCPC called four witnesses to give evidence before the Panel. The Panel will describe the roles of them and the assessment of them as witnesses:
· Colleague A commenced work at the Hospital a week after the Registrant commenced her employment. Initially, they were trained together, although their training was subsequently split because training two people together was challenging for the team. For approximately 18 months Colleague A and the Registrant worked in close proximity. If not actually working together, they would still cover one another’s breaks. After approximately 18 months, they worked less closely because from that time Colleague A did on-call and night shifts while the Registrant remained working day shifts. The Panel’s assessment of Colleague A was that she was a genuine and honest witness who was passionate about the work she undertook at the Hospital. It is true that she was critical of the Registrant’s professional practice, but the Panel did not find that she set out to denigrate the Registrant. The Panel found her to be balanced in her evidence and to have good recall of the events she considered to be important. So far as her evidence with regard to Particular 1 was concerned, Colleague A set out in detail the events of 1 August 2018 in an email to her senior colleague IW, written on the same day and sent on 2 August 2018. That email, a statement made in an internal Hospital investigation, her witness statement made for the present hearing and her oral evidence were all consistent.
· Mr RS was a Specialist BMS working at the Hospital. The Panel found him to be very knowledgeable in his field of expertise, and a reliable witness who was unafraid to state that he could not recall matters. Mr RS appeared to be fair and balanced in his assessment of the Registrant’s ability to practise. So far as his evidence is concerned in relation to Particular 1, it was clear to the Panel that his recollection of that day was limited, and this is corroborated by the very short statement he produced for Mr IW for the 1 August 2018 incident.
· Ms AJ, another Specialist BMS. Part of Ms AJ’s role was to prepare for the then future UKAS accreditation process. She first met the Registrant in about February 2019. Although Ms AJ and the Registrant had both been at the Trust since Ms AJ joined in 2017, Ms AJ had not been made aware of any of the concerns that were raised in 2016 and 2017 nor the incident in 2018. Ms AJ was also not aware that the Registrant had been suspended and when the Registrant returned to work, Ms AJ had assumed she had been off sick which was why she was being retrained. She was asked to mentor the Registrant who was returning to work after a period of approximately 6 months, having been suspended from her employment as a result of the matters that are being considered by the Panel under Particular 1. During this period of mentorship, Ms AJ kept a handwritten journal in which she recorded relevant issues concerning the Registrant. In early April 2019, Ms AJ found the burden of the mentorship to be too great, and from that time her contact with the Registrant became that of pastoral support. In the judgement of the Panel, Ms AJ was a very credible and consistent witness. She gave her evidence in a balanced manner. There was no sign of bias against the Registrant; indeed, it appeared that she was sympathetic and very caring.
· Dr LK, a Speciality Doctor in Haematology. Dr LK’s evidence was factual and uncontroversial, as it concerned a factual Particular admitted by the Registrant. However, the Panel found Dr LK to be a credible witness upon whose evidence the Panel could safely rely.
7. In addition to the oral evidence of the witnesses just described, the Panel was provided with witness statements made by each of them for the present proceedings. Furthermore, the HCPC introduced an exhibits bundle extending to 489 pages. The documents contained in this bundle included investigation reports conducted on behalf of the Registrant’s former employer, policy and procedure documentation as well as relevant test results provided in respect of patients.
8. The Registrant gave evidence in her own defence. The Panel was also provided with a witness statement dated 12 January 2023 made by the Registrant. In addition to the witness statement, the Panel was provided with a reflection document referred to in the witness statement. The Panel did not find the Registrant to be a reliable witness. In a number of respects her evidence was inconsistent and contradictory. For example, she stated that he was not receiving feedback, yet also stated that she received constant criticism. Again, she stated that she always followed Standard Operating Procedures (SOPs) and then described an instance when she did not. Furthermore, having given proper allowance for the strain on a Registrant giving evidence in their defence, the Panel found that there were instances when she was evasive in her replies, particularly when being asked about the monitor screen on an analyser machine.
9. The Panel confirms that in reaching its decisions, it has reviewed the entirety of the evidence presented to it. It has recognised that the HCPC carries the burden of proving matters against the Registrant on a balance of probabilities. It has also kept in mind the need to take particular care when considering hearsay evidence.
Particular 1 - On 1 August 2018, you:
a) inappropriately shared the results of a test that were subject to verification;
b) shared the results as outlined in paragraph 1a above despite being told by colleague A that there was a potentially erroneous result, and this should not be shared until verified;
c) used colleague A’s computer to view the results and intended to authorise the results logged in as colleague A.
10. On 1 August 2018, Colleague A was working at a Sysmax XE2100 machine and was logged on; the Registrant was working nearby on coagulation. When the time came for to have a break, she logged off and the Registrant logged on in her own name for the duration of Colleague A’s break. When Colleague A finished her break and returned to the machine on which she was working, the Registrant logged off it, and Colleague A logged back on. When Colleague A logged back on, she saw a test result that had not been automatically validated, but was flashing on the screen. Colleague A could see that it had been there for approximately 15 minutes, the better part of the time she had taken for her break. The reason the result had not automatically been validated by the machine was because of the extremely low values that had been detected. The reading was a haemoglobin level of Hb35. A normal reading would be in the range 120 to 180. To Colleague A, the reading of Hb35 meant either that the patient from whom the sample had been taken was very gravely unwell, or the sample was defective, for example as a result of being taken from an arm in which a drip was positioned.
11. The Panel’s decision in relation to Particulars 1(a) to (c) requires the resolution of a stark conflict between the evidence of Colleague A and that of the Registrant. Even without the corroboration that will be briefly mentioned in the next paragraph, the Panel’s assessment of the relative reliability of Colleague A and the Registrant as witnesses would have resulted in the Panel accepting the evidence of Colleague A. The Panel accepts that, after Colleague A returned from her break and had logged back onto the machine, the Registrant had a telephone conversation in which she read out the results from the machine Colleague A was logged onto. The Registrant had this telephone conversation despite Colleague A not only requesting that she should not do so, but explaining why she should not do it.
12. The elements of the evidence that support Colleague A’s account are as follows:
· It is not disputed by the Registrant that she participated in a telephone call concerning the results following Colleague A’s return from her break (albeit that the Registrant denies having disclosed the haemoglobin result). In the judgment of the Panel, no issue of substance turns on whether the call was made to the laboratory or from the laboratory.
· The Panel does not find that Mr RS’s evidence as to what he observed of the Registrant’s actions or words to be sufficiently specific to assist in the resolution of the issue. However, the Panel does find that Mr RS’s evidence that he supported Colleague A in her attitude that the result should not be released and that a repeat sample was required, supports the evidence of Colleague A.
· It is apparent from the records that someone disclosed the low haemoglobin reading. This is because there is recorded the following, “Consultant Note ….. Did not have MRI as haematologist phoned MRI to say HB was 34!”. Quite apart from her clear and unqualified evidence that she did not do so, it is inherently improbably that one moment Colleague A would have been taking the view, corroborated by Mr RS, that the result should not be released and a further sample provided, and the next moment releasing the result.
13. The consequence of these findings for the specific sub particulars of Particular 1 is that Particular 1(a) is proven. It was inappropriate for the result to have been shared on two distinct grounds. One was the ground expressed by Colleague A at the time (and contemporaneously supported by Mr RS), namely, in circumstances where such a dramatically abnormal result was obtained, it should not have been released, but a further sample requested. The other reason was that the person who had responsibility for the sample was Colleague A. Particular 1(b) is also proven as the Panel is satisfied that Colleague A explained to the Registrant why the result should not be shared. So far as Particular 1(c) is concerned, the Panel is satisfied that the Registrant shared the result while Colleague A was logged onto the machine, and for that reason she did, “[use] Colleague A’s computer to view the results …”. However, while the Panel finds it difficult to discern what the Registrant’s motive was for meddling as she did, it does not find that she did it with the intention of causing mischief or landing Colleague A in trouble. It is also relevant to note that the result was not in fact verified. Accordingly, the Panel has not been persuaded that the Registrant “intended to authorise the results logged in as Colleague A.” Therefore, the Panel finds that Particular 1(c) is not proven.
Particular 2 - On various dates between 2016 and 2018, you did not take sufficient time in reviewing blood films.
14. The Panel accepted the submission made by Ms Robinson that the complaints reflected in this Particular were not contemporaneously documented, and that they were not identified by either occasion or date. It was also correct to contend that there was no standard or benchmark by which the Registrant’s speed could be measured. Nevertheless, it was the view of Mr RS a man who was a specialist in the area and a witness who demonstrated fairness to the Registrant throughout his evidence, that the Registrant would complete work that would take other people a whole morning in an hour. In his evidence and in his statement, he referred to her method of working generally that ‘she seemed to feel speed was equivalent to efficiency’. The evidence of Colleague A was the same effect. In answer to questions from the Panel, Colleague A gave evidence that the rushing of going through blood films started in the latter half of 2017 and she explained that the Registrant would spend a mere 2-3 minutes on a blood film and could finish 3-4 hours work in approximately 1 hour.
15. The conclusion of the Panel was that there was sufficiently cogent evidence for it to find on a balance of probabilities that the Registrant was not taking sufficient time in reviewing blood films. Particular 2 is proven.
Particular 3 - On various dates between 2016 and 2018 you did not follow laboratory procedures when:
a) Working with reagents;
b) Conducting quality control checks;
c) Storing bone marrow samples.
16. Again, the Panel accepted the submission made by Ms Robinson that there was an absence of contemporaneous documentation, and the occasions on which the failings took place were not particularised. Nevertheless, the Panel concluded that the evidence of Colleague A proved on a balance of probabilities that on a number of occasions in the period 2016 to 2018, the Registrant did not follow the established laboratory procedures when she worked with reagents, when she conducted quality control checks and stored bone marrow samples. Colleague A, in answer to questions from the Panel, gave evidence that the concerns in Particular 3(a) and 3(b) occurred from around April 2017 onwards and 3c from the end of 2017. In relation to Particular 3(c), Colleague A gave evidence of three specific incidents of concerns regarding the Registrant’s storing of bone marrow samples.
17. The Panel also took into account the documentary evidence provided in the form of the manager’s statement of December 2016 and March 2017 which repeatedly referred to concerns about the Registrant’s ability to practise safely. The Panel also had regard to the Registrant’s own evidence that she was ‘constantly criticised’ about her practice. Although, these concerns relate to the Registrant’s general practice, it was clear that there were very serious concerns in relation to the Registrant’s ability to follow laboratory procedures. Accordingly, each limb of Particular 3 is proven.
Particular 4 - On 20 March 2019, you:
a) Used the analyser unsupervised when you had not been signed off in this skill;
b) Used the analyser for a sample which had already been tested;
c) The action at 4(b) was against management instructions.
18. There are two matters that are necessary to explain for an understanding of this matter.
19. The first is that as at 20 March 2019, following her return to work after a long absence, the Registrant was working with Ms AJ to discharge the competencies of a Biomedical Assistant (“BMA”), a role that is junior to that of BMS.
20. The second matter of background is that the computer system (“Meditech”) used in the laboratory is periodically switched off in order that it can be checked for security breaches and leaks. However, samples can still arrive in the laboratory during the period the computer is switched off. If the results are required, the samples can be run on the machines and a copy of the printed results sent to the requester. Another copy of the printed results is retained in the lab to enable the results to be entered on the computer system when it is back up and running.
21. On 20 March 2019, the computer system was offline between 03:00am and 06:00am, and in that period four or five samples had been analysed. Printed copies of the results had been provided to the requestor during the time the computer system was offline. During the morning team “huddle”, Ms AJ referred to the fact that the samples had been completed. Ms AJ took it upon herself to enter the results on the Meditech system as and when she had time. What then happened can be best described by reproducing Ms AJ’s contemporaneous, handwritten journal entry relating to this incident:
“[The Registrant had a phone call and proceeded to look for a FBC sample that had been run offline due to Meditech downtime ~ 5:30am. There were a few samples to enter the FBC and coag results for that were mentioned in the huddle that morning. No one had been assigned the task. I took it upon myself to start to enter the results. [The Registrant] got one of the samples and reprinted a label for it now that it had been booked into Meditech. I told [the Registrant] that I had the results and that I would be entering these in a few minutes. [The Registrant] labelled the sample & put it on the analyser to run again. When I came to enter the results they had been transmitted with new values. Disregarding my instructions.”
22. The Registrant admitted Particulars 4(b) and 4(c), and the Panel finds that the evidence of Ms AJ which it accepts demonstrates that they were appropriately admitted.
23. The basis upon which the Registrant denies Particular 4(a) is that she contends that there were no restrictions on any members of staff, whether BMS or BMA, in operating the relevant analyser. The Panel did not accept that contention. Rather, it accepted the evidence of Ms AJ that a BMA can operate the machine if deemed competent to do so, but the Registrant had not been assessed as competent on that analyser. Accordingly, the Panel finds that in addition to the sub-particulars admitted by the Registrant, it has also been proven by the HCPC that she used the analyser unsupervised when she had not been signed off to do so.
24. Ms AJ spoke to the Registrant about this incident on 22 March 2019. The Registrant told Ms AJ that she felt that she was back into a routine and wanted to be doing Biomedical Scientist work again and only wanted to help.
25. The consequence of these findings is that all limbs of Particular 4 are proven.
Particular 5 - On 2 April 2019, you:
a) Used the coagulation analyser unsupervised when you had not been signed off in this skill;
b) Ignored a low reagent warning sign on the coagulation analyser.
26. On 2 April 2019, the Registrant was still working with Ms AJ through the BMA competencies. In the return to work document dated 25 February 2019 entitled, “Tasks in Haematology & Coagulation”, under the heading, “BMA working in Coagulation”, one of the tasks is described thus, “Centrifuge samples, load & unload samples onto coagulation analysers. Check sample quality.” Against this typed entry is the manuscript entry, “Shown and doing”. It follows from this evidence that the Panel accepts that as at 2 April 2019, the Registrant had been acknowledged to be competent to undertake the BMA task of loading and unloading the analyser.
27. However, Particular 5(a) is concerned with not just loading and unloading the analyser, but with using it. In this regard, the Panel accepted the evidence of Ms AJ that she saw the Registrant switching between screens on this coagulation analyser. In the judgment of the Panel, this amounted to more than the loading and unloading BMA competency that had been met. In addition, the Registrant gave evidence in chief that she had ‘pressed the start button’, although later, when asked by the Panel, she denied actively starting the machine, stating that it started automatically upon being loaded. Particular 5(a) is proven.
28. The allegation advanced by the HCPC in relation to Particular 5(b) is closely linked to the switching between the screens on the analyser display. When a reagent level is low, a yellow bottle image flashes on the screen, but if the screen on which that image is displayed is swiped to another screen, the warning disappears and does not recur. It is entirely possible that Ms AJ did in fact see the yellow bottle warning image before it was swiped away by the Registrant, but having regard to the fact that there was no evidence that the reagent supply in the analyser was subsequently exhausted, the Panel has concluded that the HCPC has failed to prove on a balance of probabilities that it was displayed. Accordingly, Particular 5(b) is not proven.
Particular 6 - On 30 September 2019, you performed a manual differential count in which you:
a) Did not differentiate between lymphocytes and neutrophils;
b) Did not look at the patient history.
29. On 30 September 2019, the Registrant undertook a manual differential count of blood cells of a sample that had been provided by a patient at the GP surgery. The patient had a diagnosis of chronic lymphocytic leukaemia (“CLL”), and that diagnosis was available for the Registrant to see in the patient’s records. The Registrant reported the presence of neutrophils and blast cells, instead of lymphocytes. The consequence of the mis-reporting was that the patient was admitted to the Accident and Emergency Department of the Hospital because, had the cells reported by the Registrant in fact been present, it would have suggested that the patient was infected and/or that the leukaemia had transformed into another type. Upon admission to Hospital a further blood test was taken and when Mr RS analysed that sample and reviewed the Registrant’s work, it was discovered that the Registrant had erroneously recorded the sample she had analysed.
30. The Registrant admitted Particular 6(a), and the Panel accepted the evidence of Mr RS as summarised immediately above. It follows that the Panel considered that the admission had been appropriately made. Particular 6(a) is proven.
31. The contention made by Particular 6(b) that the Registrant did not look at the patient history is not based upon any specific evidence of what the Registrant did or did not do. Rather, it is founded on the proposition that had the Registrant looked at the patient history, and thereby known of the CLL diagnosis, it would simply not have been possible for her to have reported as she did as any competent BMS would have understood that the report was inconsistent with CLL.
32. The Registrant gave evidence to the Panel that she did indeed look at the patient history. There is no basis, save for the suggested inference based on professional competence explained immediately above, on which it could be found that she did not. The Panel does draw that inference and so does not find that the Registrant did not look at the patient history. Accordingly, Particular 6(b) is not proven.
Particular 7 - On 18 November 2019, you reviewed a blood film and you;
a) Did not record the presence of abnormal cells;
and/or,
b) Did not record the presence of blast cells.
33. On 18 November 2019, the Registrant reported on a blood film and did not record the presence of abnormal cells. A short while later, Dr KL reported on another blood film relating to the same patient. Dr KL noticed some atypical cells resembling blast cells which would raise the suspicion of leukaemia or lymphoma. Dr KL reported her findings to the Consultant under whom she worked. The Consultant asked whether there had been any films before those reviewed by Dr KL. Dr KL discovered the film recently reported by the Registrant, and, when she and two Consultants reviewed that film, there had been abnormal cells in the film reported by the Registrant.
34. The Registrant admitted both limbs of Particular 7. The Panel accepted the evidence of Dr KL and was therefore satisfied that the admissions were appropriately made. Both limbs of Particular 7 are proven.
Finding of facts summary
35. It follows from the findings described above that, with the exception of Particulars 1(c), 5(b) and 6(b), the Panel finds the facts alleged by the HCPC to be proven. It will therefore be necessary for the Panel to go on to consider whether the proven facts amount to misconduct and/or lack of competence.
Decision on grounds
36. After the Panel handed down its decision on the facts it allowed the parties time to consider the written document before they made their submissions on the statutory grounds.
37. On behalf of the HCPC, the Presenting Officer drew the attention of the Panel to the HCPC Standards of conduct, performance and ethics and Standards of proficiency for biomedical scientists identified as having been breached in the Case Summary included in the hearing bundle. He also reminded the Panel of the approaches to a finding of misconduct and lack of competence that had been suggested by the Courts in reported decisions.
38. On behalf of the Registrant, Ms Robinson drew attention to the Panel’s decision that, in acting as she did, the Registrant had not acted in any way maliciously. Rather, it was submitted, although the Panel might take the view that the Registrant’s actions were misguided, her intention had been to assist. Ms Robinson made it clear that the Registrant accepted that the Panel would find the proven particulars amounted to either misconduct or lack of competence. It was not submitted that it should be either misconduct or lack of competence, but it was not submitted that neither should be found.
39. The Panel began its deliberations by assessing the seriousness of the proven facts. When viewed separately:
· So far as Particular 1 is concerned, in sharing the Hb result, she ignored the clear requests of Colleague A that she should not do so, disregarded the reason why Colleague A was not prepared to share the result herself, and exposed the patient to the risk of receiving blood products that were not required and potentially harmful.
· With regard to Particular 2, the failing continued for a number of years despite retraining and reminders that more time should be taken. The risks associated with rushing a review of a blood film are that mistakes are likely to be made. If that mistake is that something is reported that is not present, the consequence can be that experienced by the patient involved in Particular 6 below. If the mistake is that something that should be reported is missed, the consequences can be as will be referred to under Particular 7 below.
· So far as Particular 3 is concerned, again the failure to follow laboratory procedures continued over a number of years. The risks that effective analysis will be compromised are obvious and include the potential for incorrect or delayed patient management and the consequential impact that would have on the treating clinical teams.
· The incident on 20 March 2019 reflected in Particular 4 occurred despite Ms AJ specifically informing the Registrant that she should not run the test because it was unnecessary. The consequence of the Registrant ignoring that instruction was that two test results were created for the same sample, the result of which would be, at best, to cause confusion.
· With regard to Particular 5, the rationale for the requirement that members of staff should be assessed as competent to operate analysers is clear; a laboratory containing highly sophisticated machinery can only be relied upon to produce reliable test results if there can be confidence that the individuals operating the machines have been assessed as competent to do so. Without that confidence in the competence on the part of the individuals, confidence in the test results is significantly diminished.
· Particular 6 involved the reporting of something that was not present. The consequence for the patient involved in Particular 6 was that he was admitted to the Accident and Emergency Department of the Hospital where further blood samples were taken.
· The error in Particular 7 was missing something that was present. The potential for harm is significant. In this particular case it is purely fortuitous that Dr KL reported her blood film a short while after the Registrant’s error.
40. It is clear from the preceding paragraph that the Panel considered that, when viewed individually, the proven particulars are serious. When considered in the round, they paint a troubling picture of a practitioner who is determined to act in the way she has decided to act, not only wilfully ignoring the advice of others (including those much more senior), but also disregarding established protocols and consciously deciding to act outside the scope of her practice.
41. The Panel considered whether these failings resulted from a lack of competence, and, in that context had regard to the HCPC’s Standards of proficiency for Biomedical Scientists (issued in March 20214). However, although the manner in which the Registrant behaved involved multiple departures from the standard of performance that is envisaged by these proficiency standards, the Panel did not consider it necessary to itemise the respects in which they were breached. This is because, in the main, those standards are prefaced by the words, “Registered Biomedical Scientists must be able to …..”. In the judgment of the Panel, this is not a case of a person who is unable to discharge the required competencies. The evidence of Mr RS demonstrates why this is so. Mr RS administered tests to the Registrant, and she was able to satisfy the competency. Rather, the problem with the Registrant (as Mr RS feared would prove to be the case) was whether she was prepared to continue in her day-to-day practice in the manner she had when satisfying the competency.
42. The Panel therefore considered the HCPC Standards of conduct, performance and ethics. The conclusion of the Panel was that the following standards were breached:
· Standard 2, “Communicate appropriately and effectively”, and, in particular:
o 2.5, “You must work in partnership with colleagues, sharing your skills, knowledge and experience where appropriate, for the benefit of service users and carers.’"
· Standard 3, “Work within the limits of your knowledge and skills”, and in particular:
o 3.1, “You must keep within your scope of practice by only practising in the areas you have appropriate knowledge, skills and experience for.”
and,
o 3.5, “You must ask for feedback and use it to improve your practice.”
· Standard 6, “Manage risk”, and in particular:
o 6.1, “You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.”
and,
o 6.2, “You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.”
43. Having formed a view of the seriousness of the proven findings both individually and collectively, and then assessed the breaches of the Standards of conduct, performance and ethics, the Panel asked itself whether a finding of misconduct is appropriate. The clear conclusion of the Panel is that the gravity of the findings requires such a finding in respect of all the findings.
44. Having determined that the proven facts amounted to misconduct, the Panel must proceed to consider the issue of current impairment of fitness to practise.
Decision on impairment of fitness to practise
45. This hearing was scheduled to take place during the week of Monday 8 to Friday 12 January 2023, and then to resume on Thursday, 25 January 2023 for two days. The decision above, concluding with the finding of misconduct was handed down on Friday 12 January 2023, and it was decided that the issue of impairment of fitness to practise would be considered when the hearing resumed on 25 January 2023. Before the hearing adjourned on Friday, 12 January 2023, both the HCPC and the Registrant provided further documents for the consideration of the Panel.
46. The HCPC’s further bundle of documents extended to 27 pages, the Registrant’s to 101 pages. Having reconvened on Thursday, 25 January 2023, the Panel was provided with a further document prepared by the Registrant entitled, “My reflections on the outcome of the final hearing”. The Panel was also informed that it was intended to call a witness on behalf of the Registrant, Ms HS. After Ms HS gave evidence, the Registrant herself gave further evidence. It follows from this summary that when the Panel reached its decision on impairment of fitness to practise, it had a good deal of evidence to consider. The Panel considers that it is neither necessary nor desirable to reproduce that evidence in this determination; that evidence, and the Panel’s findings in relation to it, will be summarised so that it can be understood how it contributed to the Panel’s finding.
The HCPC’s Impairment Bundle of documents
47. The HCPC’s further bundle of documents contained two documents, a decision of an earlier final hearing concerning the Registrant, and the review of the conditions of practice order that resulted from that final hearing. Until the HCPC supplied this bundle of documents after the Panel announced its decision that it had decided that the statutory ground of misconduct had been made out, the Panel had been unaware that the Registrant had been the subject of an earlier allegation.
48. The allegation in the earlier fitness to practice hearing concerned the Registrant’s performance as a Biomedical Scientist when working at Portsmouth Hospital NHS Trust between May 2015 and October 2015. The allegation was that her fitness to practise was impaired by lack of competence. The final hearing took place between 20 March 2017 and 22 March 2017. The Registrant admitted the factual particulars and the panel found all of the factual particulars alleged to amount to lack of competence to be proved. These included not appropriately managing the urgency of telephone calls into the Transfusion Department, on two occasions exceeding the confines of her signed off competencies in Transfusion and not adequately performing basic laboratory techniques in pipetting. It was also alleged, and found proved, that at the conclusion of her probationary period review meeting in October 2015, the Registrant had not consistently demonstrated the ability to work unsupervised. There are a number of passages of the panel’s determination that should be repeated:
(22) The Panel was satisfied that the Registrant was provided with an opportunity to address the deficiencies identified in her practice. Her performance had been assessed further but she had failed to address these deficiencies.
(23) The facts found proved related to a period between May 2015 and October 2015 during which the Registrant failed to demonstrate the standards of knowledge, skill and judgment required to practise as a Band 5 Biomedical Scientist. They included mistakes made whilst being supervised and not knowing the boundaries of her abilities and competency.
(24) The Panel determined that during this period the Registrant was afforded opportunities, by way of the additional training and support given by the other staff, to demonstrate her competency as a Band 5 Biomedical Scientist.
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(32) The Panel considered whether the Registrant’s lack of competence was easily remediable, whether it had been remedied, and the likelihood of any repetition. The Panel also had regard to the issue of insight. The Panel noted the Registrant’s admission as to her lack of competence and her acknowledgment that she need to learn from her errors and be more reflective in her practice. To that extent the Panel considered there was evidence of limited insight. However the evidence before the Panel suggested that the Registrant appeared to have difficulty in disciplining herself to apply such insight in workplace situations when, for example, she had a tendency to act impulsively.
(33) The Panel determined that the Registrant’s lack of competence was remediable but that it had not been remedied yet.
(34) The Panel particularly took into consideration the additional documents provided by the Registrant’s current employer. It gave an up-to-date assessment of the Registrant’s performance as of March 2017. It is clear that there remain concerns about the Registrant’s lack of competence in relation to her ability to recognise and manage phone calls into the blood transfusion unit, and also that she continues to work outside the confines her agreed competencies. The documentation was accompanied by a letter from the Haematology Manager of the Coventry and Warwickshire Pathology Service (CWPS) where the Registrant works currently. The Panel noted the following comments made in that letter:
“... had made some promising progress after a little bit of a shaky start ... Kumarini could work autonomously in areas where she had been signed off as being competent ... We agreed that her next move would be into blood transfusion ... We stressed to Kumarini the importance of attention to detail, following policy and referring to her colleagues when appropriate ... Our next supervisory meeting was on Wednesday 1st March 2017 and this was quite a difficult session because although Kumarini had only been in blood transfusion for a short time there had been several incidences [sic] that caused concern”
(35) The above letter also gave details of several incidents that occurred during the period February 2017 and March 2017 and it concluded with the following paragraph: “Kumarini has some definite positive points; she is hard working and was mentioned in a team huddle at Burton for clearing the outstanding worklists in automated haematology. Her real weaknesses are knowing the limit of practise and impulsiveness.”
(36) The Panel noted the minutes of a supervisory meeting on 1 February 2017 which indicated that the Registrant had performed well during her posting in January 2017 to the Haematology section and that there had been no issues with her pipetting skills.
(37) However, the minutes of the supervisory meeting on 1 March 2017 indicated that there had been further issues with the Registrant’s performance of her duties. Those minutes noted that “In the last review meeting we clearly stressed the importance of following Burton’s policy for sample acceptance, but Kumarini would not listen and failed to follow advice from her colleagues.”
(38) Furthermore, the Panel noted that the documentation also indicated that there was a further incident on 9 March 2017 when the Registrant again overstepped the limits of her practice and did not ask for advice from a senior BMS.
(39) In the light of the above, the Panel determined that there was a high risk of repetition and that the Registrant remains a risk to service users. Therefore, for that reason and having regard to the need to protect the public and uphold proper professional standards and public confidence in the profession, the Panel determined that the Registrant’s fitness to practise is currently impaired by reason of her lack of competence.
…
(43) [The Registrant’s representative] told the Panel that the Registrant was currently under an Interim Conditions of Practice Order and accepted there has been repetition of the Registrant’s lack of competence since the imposition of that order. [The Registrant’s representative] submitted that the current conditions imposed upon the Registrant’s practice was a good starting point for the Panel when considering whether conditions of practice remained appropriate in this case.
(44) [The Registrant’s representative] submitted that the Registrant had some insight into the issues relating to her practice. She told the Panel that the Registrant recognised that she was impulsive. She was remorseful and regretted the incidents.
49. The panel that conducted the 2017 final hearing determined that a conditions of practice order for a period of 12 months should be imposed. The significant conditions of that order were that the Registrant should not work unsupervised in Blood Transfusion until her competencies as a Band 5 practitioner in that discipline had been satisfied, to ensure that she had a laboratory based supervisor with whom she would meet on a weekly basis to discuss her progress, and to appoint a mentor who did not work in her department with whom she could work. The conditions of practice order was reviewed by a different panel on 5 April 2018. There are also elements of the determination of the panel that conducted this review that should be repeated:
(12) HCPC had received quarterly reports dated July 2017, November 2017 and March 2018 from Ian Webster, Haematology Site Lead in the Haematology Department at Queens Hospital, Burton Hospital NHS Foundation Trust. He is the Registrant’s Line Manager. These reports set out the Registrant’s progress. The final report of March 2018 stated that since the report of November 2017 the Registrant had been functioning fully as a Band 5 BMS in all routine areas of the Haematology Department (Full Blood Counts, Routine Coagulation, Glandular Fever Screens, Malarial Parasites Testing, Morphology, Electrophoresis and Warfarin Dosing). The report stated that the Registrant had continued to grow in confidence and there had been no issues with her standard of work nor any recurrences of her previous impulsiveness. She appeared more methodical, calmer under pressure and generally more settled than at the time of the first report. The Registrant was described as having made very good progress in Haematology and as a hardworking, dedicated and enthusiastic member of staff.
(13) The Registrant stated she had written weekly reflections and submitted them to her supervisor. She had also met with him regularly to discuss her progress.
(14) The Registrant confirmed she had been working unsupervised in the areas in which she has been signed off as competent. She had not been fully signed off in Blood Transfusion, as work pressures in that area had meant that her training had been delayed. She had therefore not worked unsupervised in Blood Transfusion. The Registrant told the Panel that she regularly takes phone calls in the department and will pass these onto colleagues if she is unable to deal with the query. She now knows her limits and is not so impulsive in her actions.
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(16) The Registrant’s overall submission was that since the hearing of her case in March 2017 she had made good progress and felt mature in her role. She stated she had been signed off as competent in blood film morphology, electrophoresis sendaways, as well as the authorisation of full blood count and clotting results. She regularly performs these tasks unsupervised. She felt happier and confident in her role at Burton-on- Trent and was receiving positive feedback from her senior colleagues and was maintaining good relationships with all her colleagues.
Mr Ian Webster
(17) Mr Webster gave evidence on behalf of the Registrant. He confirmed he is the Haematology Site Lead at Burton Hospitals NHS Foundation Trust and is a Band 7 BMS. Mr Webster clarified that the Registrant and Mr Rady (a Band 6 BMS who had originally been named as the Registrant’s supervisor in relation to Condition 1) both report to him.
(18) Mr Webster confirmed that he regularly works directly with the Registrant and provides her with ongoing informal supervision. He stated that she is a very different person from when she commenced at Burton Hospitals Trust 18 months ago. He described the Registrant as more confident, more relaxed in the work environment and as having good relationships with her colleagues.
(19) Mr Webster informed the Panel that the Registrant had been signed off as competent in all areas other than Blood Transfusion. A training programme in this remaining area was being devised by the Trust’s Quality Manager which would take 4 months in total to deliver. He expected this training for the Registrant would be taking place within the next 12 months. He informed the Panel that two other BMS’s were required to undertake the training before the Registrant. However, he confirmed that if it were possible for the Registrant to undertake the training now, in his view, she would be ready to do so.
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(25) [The panel] was satisfied that she now has a range of coping strategies in place. Mr Webster confirmed that in practice, he had observed the positive change in the Registrant in this respect in the workplace. He said she could now recognise when she needed assistance and would ask for it.
50. In the light of the evidence it received, the reviewing panel concluded that it was appropriate to make no further order to follow the conditions of practice order that had been imposed on 22 March 2017.
The evidence of Ms HS
51. Ms HS is a Senior Biomedical Scientist whose specialism is Blood Transfusion. She has been in the role of acting as the Registrant’s Supervisor during her current employment by Calderdale and Huddersfield NHS Foundation Trust, an employment the Registrant commenced on 1 March 2023. Ms HS is in partial retirement working two days a week. Some of her views necessarily reflected reports to her by other members of staff working in the laboratory. She was called to give evidence by the Registrant. The Panel accepted her evidence.
52. Ms HS said that the Registrant had very good theoretical knowledge, a good work ethic and was punctual. However, Ms HS’s evidence revealed a number of on-going problems:
· The Registrant continues to struggle to apply her theoretical knowledge to patients.
· Concerns over communication persist. An example given by Ms HS concerned the number of blood films prepared by the Registrant. When told that she had produced too many, and told that she had previously been advised of this, the Registrant claimed that she had not been given this advice. Ms HS said that this was not the case, a number of staff said they had spoken to the Registrant about making too many blood films.
· The Registrant is still making mistakes.
· Ms HS gave evidence about feedback she had received from a colleague with regard to the Registrant’s work on differential analysis. It was that the Registrant had been reluctant to engage with support proffered when she had been double-counting cells. The view of the colleague was that it would be easier to train the Registrant from scratch.
· The Registrant’s purported reflections on her practice are not true reflections; she tends to defend what she has done rather than think about how she could improve. Her reflections are more a statement of events rather than the learning she could take from an occurrence. Ms HS stated about the Registrant that ‘she doesn’t want to listen to what you have to say… she is very defensive… she needs to engage more.’
· When Ms HS attended the interim conditions of practice review in June 2023, and discovered the extent of the allegation, she was very concerned that the Registrant appeared to have been signed off in relation to a number of competencies in the course of one day which she considered inappropriate. As a result, Ms HS initiated further training and competency assessment of the Registrant.
· When asked if the Registrant was ready to work unsupervised, Ms HS replied that the Registrant was not ready to work unsupervised. It was her opinion that there remained a lot of work to be done.
The Registrant’s oral evidence and her various reflection documents
53. In oral evidence the Registrant accepted that her fitness to practise is currently impaired. She suggested that she would benefit by conditions of practice being imposed.
54. The Panel concluded that the Registrant has demonstrated very limited, if any, genuine insight into the matters the Panel is considering.
· There was a sense in which the Registrant sought to deflect blame. In relation to one criticism she blamed the machine on which she was working.
Another example was when the Registrant was asked why the issues underpinning this Panel’s findings occurred when the reviewing panel in April 2018 had received the evidence that both she and Mr Webster gave to that panel (set out in paragraph 49 above). The Registrant’s explanation was that she was unsettled because Mr Webster informed other members of staff that the conditions of practice had been lifted by the decision of 5 April 2018. She did not want other members of staff to know about her HCPC history and she felt this had unsettled her. In answer to questions from the Panel, the Registrant acknowledged that no colleague had ever actually raised the matter of the referral or the sanction imposed in April 2017.
A further example of deflecting blame was that she said that she did not feel able to “reach out” to staff at Burton-upon-Trent as she has been able to do at Huddersfield. The Panel is bound to say that it is unable to accept this explanation for a number of reasons. It is noteworthy that at the review hearing on 5 April 2018, the Registrant had explicitly stated that she was then maintaining good relationships with all her colleagues and that by that stage she was able to recognise when she needed assistance and would ask for it. The Panel was satisfied that the evidence heard by the Panel does not accord with the Registrant being unable to “reach out” to people at Burton-upon-Trent following the review hearing – neither her interactions with Colleague A on 1 August 2018 and her deliberate ignoring of Ms AJ’s statement that the sample should not be re-run on 20 March 2019 are consistent with that explanation. Furthermore, any upset as a result of Mr Webster making other people aware of the (positive) outcome of the decision made on 5 April 2018, could not explain the errors the Panel found in relation to particulars 2 and 3 which took place between 2016 and 2018 before Mr Webster apparently told colleagues that the conditions of practice had been lifted.
· The Registrant’s reflections documents do not encourage the Panel to believe that she has developed any meaningful insight. For example:
o In relation to the incident on 1 August 2018, she comments on the appropriateness of maintaining the telephone call. She does not mention the most serious aspect of that incident which was the disclosure to a clinician of the abnormal value obtained from the sample.
o Her reflections do not acknowledge the implications of her actions, particularly for patients.
The Registrant’s Impairment Bundle of documents
55. The Panel carefully reviewed the Registrant’s bundle of documents extending to 101 pages. The views on the reflection documents have already been stated. As to the other documents:
· So far as the competencies signed off before June 2023 are concerned (B2 – B17), caution is required with regard to the thoroughness of the training and assessment. Ms HS told the Panel that she attended a hearing in June 2023 when the Registrant’s current interim conditions of practice order was reviewed. Prior to that attendance, Ms HS had not fully appreciated the extent of the criticisms advanced by the HCPC; when she became aware of them, she arranged for more rigorous training to be provided. Documents demonstrating that the Registrant was signed off after the retraining arranged by Ms HS have not been provided.
· With regard to the Patient Blood Films (B24 – B46), which were undertaken as part of the Registrant’s training, disclosed by the manuscript comments added by “NHB” that significant errors were made in respect of some (although not all) of the films analysed.
· The Workplace Competency Record (B47 – B53, repeated at B54 – B60). The Panel finds it surprising that such basic training (which would be likely to be offered to staff working below the registered level) was offered some nine months after the Registrant commenced her employment and were in any event did not demonstrate competence in the registered role of a BMS.
· CPD certificates (documents in C section). The Panel accepts that the training described in the documents was delivered, but, in the view of the Panel, the value of CPD is in the practitioner’s reflections on the information communicated. In this regard there is no evidence, as demonstrated by Digital Morphology CPD document from 11 September 2023 (C26 – C27, repeated C30 – C31). As a result of the Registrant identifying three of the five morphological features correctly, an incorrect diagnosis was arrived at. Yet the “Reflective Note” part of the document is blank, leading the Panel to question what, if anything, the Registrant gained from the exercise.
56. For these reasons, the Panel found the bundle of documents to be of marginal assistance in addressing the issues to be decided.
The Panel’s decision
57. With these conclusions in mind, the Panel addressed the question of whether the Registrant’s fitness to practise is impaired. This was a decision the Panel was required to make despite the Registrant’s acceptance that her fitness to practise remains impaired. In reaching its decision, the Panel paid close attention to the HCPTS Practice Note published entitled, “Fitness to Practise Impairment” published in November 2023. As required by that document, the Panel considered separately the personal and public components of impairment.
58. So far as the personal component is concerned, an important element of the decision would necessarily be whether the failings identified by the findings already made are likely to be repeated. Conceptually, failings of the sort identified by the Panel’s findings on the facts are capable of being remedied. In assessing whether the Registrant is capable of remedying them, or, if capable of doing so, likely to achieve remediation, the starting point is to review the Registrant’s career as a Biomedical Scientist.
59. The Registrant qualified as a Biomedical Scientist in the summer of 2014. Her first employment was that in Portsmouth that resulted in the earlier fitness to practise proceedings, and that commenced in May 2015. The Portsmouth employment ended in October 2015 at the end of her probationary period. The Registrant told the Panel that she had not worked as a BMS from October 2015 until October 2016. The employment with which the present proceedings are concerned began in October 2016 and ended in June 2020. During this employment, the Registrant was suspended by her employer for some six months following the 1 August 2018 incident, and then was deployed in a non-registered capacity for a period when she returned to work in February 2019. After her dismissal from this employment in June 2020, the Registrant did not work in a role that required her HCPC registration until she commenced her employment at Huddersfield in March 2023. In the period of very nearly 10 years since the Registrant qualified as a Biomedical Scientist, the Panel can only identify a period of approximately four months from April 2018 to August 2018 when it could be said that she has been permitted to practise autonomously without restriction. During other periods she has variously been subject to either substantive or interim conditions of practice, suspended from her employment or required to work in a non-registered role.
60. The evidence of Ms HS that problems are still occurring, and that, in her words, there is a lot of work still to be done, has to be viewed in the context of the length of time the Registrant has been qualified, the very considerable efforts that have been taken to assist the Registrant to achieve the ability to practise safely and effectively and the restrictions that have been imposed on her practice. Similar problems have been reported in different employments and have recurred. There was an uncanny similarity about the concerns expressed by Ms HS and those that had been expressed by the witnesses who gave evidence in the present hearing, and, in some respects, there were echoes of these concerns with the 2017 finding in relation to the 2015 employment in Portsmouth. These past repeated failings have to be viewed in the light of the deficient insight offered by the Registrant at the present time. When the Panel asked itself what reasons could be given for expressing the view that the failings might not be repeated in the future, the Panel was unable to discern any reason other than the bare assertion by the Registrant that they would not and that she would act appropriately in the future. That assertion must be viewed in the light of what has gone before. The Panel is unable to identify any cogent and compelling reason why the failings would not be repeated in the future.
61. It follows from these findings that there is a likelihood of repetition. Errors on the part of a Biomedical Scientist give rise to a very real risk of harm to the patients whose samples are being analysed. This conclusion means that the Registrant’s fitness to practise is impaired upon consideration of the personal component.
62. In the view of the Panel the findings of fact contributing to the finding of misconduct are so serious that the public component of impairment of fitness to practise is engaged. Even without the risk of repetition, fair-minded members of the public would expect there to be a restriction on the Registrant’s ability to practise without restriction. Were no finding to be made, confidence in the profession of Biomedical Scientist and the regulation of it would be diminished. Furthermore, the Panel would be defaulting in its duty to declare and uphold proper professional standards were a finding of impairment of fitness to practise not made. The fact that there is the risk of repetition to which reference has been made, makes the finding of impairment of fitness to practise in respect of the public component all the more necessary.
63. The finding that the Registrant’s fitness to practise is currently impaired has the consequence that the allegation is well founded. The Panel must proceed to consider the issue of sanction.
Decision on sanction
64. After the Panel handed down its decision on impairment of fitness to practise, it allowed the parties time to consider the written determination before making their submissions on sanction.
65. The Presenting Officer told the Panel that it was not the intention of the HCPC to contend that any particular sanction should be imposed. He did, however, submit that in reaching its decision the Panel should have regard to the HCPC’s Sanctions Policy document. He also submitted that there were a number of aggravating factors in the present case which it would be appropriate for the Panel to consider. He identified the aggravating factors as the following:
· the potential for patient harm;
· what he described as a breach of trust, particularly with regard to the ignoring of views of her colleagues in respect of particulars 1 and 4;
· lack of insight;
· repeated matters of misconduct; and,
· the risk of repetition.
66. On behalf of the Registrant, Ms Robinson submitted that any sanction determined upon by the Panel should not be imposed to punish the Registrant. She also submitted that an element of the public interest that it would be proper for the Panel to consider is the benefit to the public of enabling a registrant to return to work safely and effectively. With regard to the aggravating factors identified by the Presenting Officer, Ms Robinson stressed that the risk was of potential harm; she submitted that no actual harm had been occasioned. In relation to the suggested aggravating factors, she also submitted that this was not a case which would fall into the category of breach of trust as that term is customarily understood in fitness to practise proceedings. Ms Robinson submitted that there were the following mitigating factors that it would be appropriate for the Panel to consider:
· the evidence from witnesses from different employments was that the Registrant had extremely good theoretical knowledge, has demonstrated a keenness to undertake training, has been, and continues to be, hard working, punctual and diligent;
· the Registrant has fully engaged in this process, continuing to do so after the Panel reached its findings on the sequential stages identified in the determination;
· the Registrant’s acceptance that her fitness to practise is impaired, and also the fact that she wished Ms HS to give evidence on her behalf despite knowing that there would be negative aspects of that evidence;
· the Registrant’s desire to continue as a BMS despite past problems and her acceptance that she needs to work on how she applies her theoretical knowledge, and that in this regard she has a lot of work to do;
· the fact that the Registrant returned to work as a BMS at Huddersfield in March 2023.
In the light of these factors, Ms Robinson invited the Panel to impose a conditions of practice order. She submitted that the things that have gone wrong are capable of being remedied. The Registrant could prepare a Personal Development Plan, build her confidence, reflect more deeply on her practice and apply the improvements developed in undertaking day-to-day tasks by her as a BMS. Ms Robinson concluded her submissions by inviting the Panel to take the view that the imposition of a conditions of practice order would be a proportionate response as it would provide a proper degree of public protection and sufficiently address the issues of public confidence.
67. The Panel accepted the advice it received in relation to the making of its decision on sanction. Accordingly, it proceeded on the basis that a sanction is not to be imposed to punish the Registrant. Rather, a sanction should only be imposed to the extent that it is required to protect the public and to maintain a proper degree of confidence in the profession of Biomedical Science and the regulation of it. The finding that the allegation is well founded does not necessarily require the imposition of a sanction because it is possible to pass from a case without a sanction being imposed. Therefore, the first question to be answered is whether any sanction is required in the present case. It if is, then the available sanctions are to be considered in an ascending order of seriousness. In undertaking this exercise the Panel is to have regard to the HCPC’s Sanctions Policy. The Panel confirms that it has applied this advice.
68. The Panel began by considering the aggravating and mitigating factors. In view of the Panel they were:
· the potential for patient harm;
· the fact that the Registrant had not worked in partnership with colleagues (the Panel considered this a more appropriate way of articulating the concern identified as breach of trust by the Presenting Officer);
· lack of insight; the Panel has already stated that the Registrant has not demonstrated insight into the actual and potential consequences of her actions, and her written reflections are deficient for the reasons already stated;
· repeated misconduct;
· the likelihood of repetition.
69. The Panel considered it was appropriate to put in the balance in favour of the Registrant the fact that she had fully engaged in these proceedings, and that the extent of the actual harm arising from the proven matters was the fact that the patient concerned in particular 6 was unnecessarily called into hospital.
70. With these matters in mind, the Panel first considered whether this is a case in which any sanction is required. The clear conclusion of the Panel was that it is. The likelihood of repetition and the appreciable risk of harm that would flow from repetition combine to require a restriction on the Registrant’s ability to practise. For the same reason, when the Panel considered whether a caution order would be appropriate, it rejected that as an appropriate outcome.
71. Accordingly, the Panel next considered whether a conditions of practice order should be made. In that regard it considered paragraph 106 of the Sanctions Policy, which is expressed in the following terms:
“A conditions of practice order is likely to be appropriate in cases where:
· the registrant has insight;
· the failure or deficiency is capable of being remedied;
· there are no persistent or general failures which would prevent the registrant from remediating;
· appropriate, proportionate, realistic and verifiable conditions can be formulated;
· the panel is confident the registrant will comply with the conditions;
· a reviewing panel will be able to determine whether or not those conditions have or are being met; and
· the registrant does not pose a risk of harm by being in restricted practice.”
72. Applying this guidance to the present case:
· the Registrant does not have insight;
· the failures demonstrated by the Panel’s findings are conceptually capable of being remedied, but given the history of the Registrant’s career as summarised in paragraph 59 of the Panel’s determination, the Panel is unable to find any solid basis for finding that the Registrant is capable of remedying them;
· there have been persistent and general failures throughout the Registrant’s employment as a BMS;
· again, conceptually, conditions of practice that would be appropriate, proportionate, realistic and verifiable could be formulated, but the evidence suggests that this is not possible for conditions of practice to be imposed in respect of the Registrant that would prevent errors from recurring. The Registrant has been subject to conditions of practice or had limitations imposed on her practice by her employers for a period in excess of 7 years, and yet errors have persisted and continue to be made;
· the Registrant does pose a risk of harm by being in restricted practice (for the reasons given in the immediately preceding bullet point).
73. If follows from these findings that the Panel does not consider that the present case falls within the parameters of the circumstances suggested in paragraph 106 of the Sanctions Policy. The Panel acknowledges that that document should not be construed rigidly, and that it has a discretion to depart from the guidance in it. Were this a case in which the findings had been made against a BMS who had been unaware of the criticisms that resulted in the findings, even if that BMS was very nearly 10 years qualified and the allegations were as serious as those demonstrated by this case, then a conditions of practice order might be appropriate. That would be because there might be present an expectation that, having the criticism brought home to them, the shortcomings would be remedied. However, the present case is as far from such a case as can be imagined. This Registrant has had her shortcomings repeatedly explained to her, been offered numerous opportunities to change how she has acted, and yet problems still arise. In the judgement of the Panel, conditions of practice should not be considered as a measure to be maintained as long as a practitioner chooses to practise, for such would be required in this case, and even then, as history has revealed, they would not prevent further errors being made.
74. Having rejected conditions of practice as an appropriate sanction, the Panel next considered suspension. Paragraph 121 of the Sanctions Policy is in these terms:
“A suspension order is likely to be appropriate where there are serious concerns which cannot be reasonably addressed by a conditions of practice order, but which do not require the registrant to be struck off the Register. These types of cases will typically exhibit the following factors:
· the concerns represent a serious breach of the Standards of conduct, performance and ethics;
· the registrant has insight;
· the issues are unlikely to be repeated; and
· there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.”
75. Appling this guidance to the present case, the Panel was of the view:
· the concerns in this case do indeed represent a serious breach of the Standards of conduct, performance and ethics;
· the Registrant does not have insight;
· the issues are likely to be repeated;
· the evidence suggests that the registrant is unlikely to be able to resolve or remedy their failings.
76. For these reasons, the Panel concluded that this case does not fit the circumstances suggested in paragraph 121. Furthermore, the Panel has concluded that a suspension order would serve no useful purpose. It is true that it would remove the risk that the Registrant would cause harm to patients, but that apart, the position at the end of any period of suspension would be exactly as it is at the present time. In short, a suspension order is not appropriate.
77. Having rejected the option of a suspension order, the Panel then considered a striking off order. Paragraph 131 of the Sanctions Policy states:
“A striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant:
· lacks insight;
· continues to repeat the misconduct or, where a registrant has been suspended for two years continuously, fails to address a lack of competence; or
· is unwilling to resolve matters.”
78. This is a serious case (the Panel noted that in paragraph 130 reference is made to cases of failure to work in partnership), the misconduct was repeated and the history of the Registrant’s career demonstrates that she is either unwilling or unable to resolve matters. For these reasons, the Panel is satisfied that the present case does fall within the guidance contained in the Sanctions Policy.
79. The Panel acknowledges that a sanction should not be imposed simply because it fits a Sanctions Policy category; it is necessary for the Panel to be satisfied that a sanction is appropriate and proportionate. Having assessed these matters, the Panel is satisfied that striking off is appropriate and proportionate. To repeat what has already been stated a number of times, this is because of the history of the Registrant’s career. In short, there are no grounds on which the Panel can conclude that the Registrant will ever be able to remedy her long-standing and repeated failings such that she could become a BMS who could practise safely and effectively. That being so, the public is entitled to be protected against her, and the only means of achieving that protection is the making of a striking off order.
Order
ORDER: The Registrar is directed to strike the name of Kumarini Fonseka from the Register on the date this Order comes into effect.
Notes
Interim Order
Application
1. After the Panel announced its decision that a striking off order would be imposed, the Presenting Officer applied for an interim suspension order to cover the appeal period. He submitted that such an order is necessary for public protection and is otherwise in the public interest.
2. Ms Robinson thanked for the Panel for allowing time for her to discuss the matter with the Registrant. However, she stated that she did not wish to advance any submissions to the Panel on the issue.
Decision
3. The Panel accepted the advice it received from the Legal Assessor that the default position established by the legislation governing these proceedings is that when a substantive sanction is imposed there should be no restriction on the registrant’s ability to practise unless and until that registrant’s appeal rights are exhausted. It follows that positive reasons are required to justify departure from this default position. Those reasons are to be measured against the grounds that can justify the imposition of an interim order, namely that it is (i) necessary for protection of members of the public, (ii) otherwise in the public interest, or (iii) in the interests of the registrant himself or herself.
4. The Panel determined that an interim order is necessary for protection of members of the public and is otherwise in the public interest. It is necessary for protection of members of the public because of the likelihood of repetition with the attendant risk of harm. It is otherwise in the public interest for the reasons explained by the Panel why the public component of impairment of fitness to practice is established.
5. An interim order being necessary, the Panel next considered whether the factors requiring it could be satisfactorily addressed by the imposition of an interim conditions of practice order. The conclusion of the Panel was that they could not. The reason for this decision is the same reason why substantive conditions of practice are not appropriate, in particular, the fact that hitherto conditions of practice have not prevented errors from occurring.
6. For these reasons an Interim Suspension Order is required.
7. As to the duration of the Interim Suspension Order, the Panel determined that it should be for the maximum period of 18 months. If the Registrant does not appeal against the substantive decision and Order, there will be no prejudice to her because the Interim Suspension Order will simply fall away when the striking off order takes effect. However, if the Registrant does appeal within the 28-day period she has to take that step, the final determination of that appeal could well take 18 months, and for the reasons already expressed, her ability to practise should be restricted pending that final determination.
The Panel makes an Interim Suspension 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.
Hearing History
History of Hearings for Kumarini Fonseka
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 08/01/2024 | Conduct and Competence Committee | Final Hearing | Struck off |
| 17/10/2023 | Conduct and Competence Committee | Interim Order Review | Interim Conditions of Practice |