Grace Masih
Profession: Biomedical scientist
Registration Number: BS68759
Hearing Type: Review Hearing
Date and Time of hearing: 10:00 12/07/2024
End:
17:00 12/07/2024
Location:
Virtually via video conference
Panel: Conduct and Competence Committee
Outcome: Struck off
Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.
Allegation
As a Biomedical Scientist (BS68759) your fitness to practise is impaired by reason of misconduct and/or lack of competence. In that:
1. Between January 2019 and September 2019, you did not demonstrate the competencies expected of a Band 5 Biomedical Scientist, in that you:
a. Did not consistently accurately test and/or interpret and/or report on the results of Urine bench test samples;
b. Did not consistently accurately test and/or interpret and/or report on the results of Environmental bench test samples;
c. Did not consistently accurately test and/or interpret and/or report on the results of Blood cultures bench test samples.
2. On 12 March 2019 you incorrectly interpreted the results of a maternity patient’s midstream specimen of urine (MSU) sample, resulting in antibiotics being administered to Service User A unnecessarily.
3. On 1 August 2019 you incorrectly reported a sample as negative for Trichomonas Vaginalis when it was positive.
4. On 14 August 2019 you were unable to identify and/or locate gram positive Streptococci on a smear slide.
5. On 15 August 2019 you caused delays in the reporting of test results in that:
a. You did not update and/or release results in a timely manner for approximately seven;
b. You put the incorrect sensitivity on a blood culture growing an Enterococcus.
6. The matters set out in allegations 1 to 5 above constitute misconduct and/or lack of competence.
7. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Finding
No information currently available
Order
Preliminary Matters
Service
1. The Registrant did not attend the hearing. The Panel was satisfied that the Notice of Hearing was sent to the Registrant at her registered email address on 14 June 2024. A confirmation of email delivery was available to the Panel.
2. The Panel was satisfied that service has been effected in accordance with the rules and notes that the Registrant is aware of today's hearing. She responded to an email from the Scheduling Officer, Ms Banjo on 21 June 2024, stating that she would not be attending the hearing.
Proceeding in the absence of the Registrant
3. On behalf of the HCPC, Ms Sampson invited the Panel to proceed in the absence of the Registrant in terms of Rule 11 of the Health Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003. She drew the Panel's attention to the Registrant’s email of 21 June 2024 in reply to the Notice of Hearing, which read:
"Hi this is to confirm that I will not be attending or be represented.
I am no longer working as a Biomedical Scientist due to this whole procedure since I resigned in 2020 ".
4. Ms Sampson submitted that the Registrant was aware of the hearing and had decided not to attend. No useful purpose would be served by an adjournment. Moreover, this is a mandatory review, and it is in both the Registrant's interest, and the wider public interest, for the hearing to take place before the Order expires.
5. The Legal Assessor reminded the Panel that it should exercise its discretion with care and caution bearing in mind the potential for unfairness to the Registrant in proceeding in her absence. He reminded the Panel what was said by the Court of Appeal in 2016 in GMC v Adeogba; GMC v Visvardis [2016] EWCA Civ 162 in regard to the Panel’s lack of power to compel the Registrant’s participation in the review hearing.
6. The Panel considered the advice of the Legal Assessor and the guidance provided in the HCPTS Practice Notes on 'Proceeding in the Absence of the Registrant' and on 'Postponements and Adjournments'.
7. The Panel is aware that the discretion to proceed in the absence of a Registrant is one that should be exercised with care and caution. However, the Panel has a primary duty to protect the public. The Panel is satisfied that there had been good service and that the Registrant has decided not to attend today's hearing. There was no application for an adjournment and in her email the Registrant made it clear that she does not any longer work or wishes to work as a Biomedical Scientist ('BMS'). The Panel concluded that the Registrant had voluntarily absented herself. This is a mandatory review and the Panel has a duty to review the current Suspension Order. The Panel has concluded that it was appropriate to proceed in the absence of the Registrant.
Background
8. The Registrant was employed by Birmingham Women's and Children's NHS Trust ("the Trust") from February 2018 until November 2019. Her employment was as a Band 5 BMS, working in microbiology. The Registrant did not attend the Final Hearing but provided written submissions for the Final Hearing which included the assertion that she had not received adequate training.
9. Before qualifying as a BMS, the Registrant worked for 11 years as a Band 2 Medical Laboratory Assistant ("MLA"). She graduated with her initial degree in 2006, and decided to return to study part time for what she describes as a "top-up" degree that would enable her to become a BMS. At one stage she dropped out of this further course of study for personal reasons, but subsequently returned to study part time, graduating with the "top-up" degree in 2014. She also completed the Institute of Biomedical Sciences portfolio required for registration as a BMS in 2015 and was in a position to commence her search for a Band 5 post as a BMS, but continued to work as a MLA.
10. The Final Hearing panel concluded that the Registrant made a number of significant but basic errors which resulted in a Capability Management Process being commenced by the Trust. The capability plan was drawn up at a meeting on 25 February 2019. It was decided that the Registrant should work on the urine bench as this was the most basic, and that she would then be rotated to other benches. A reported lack of overall or sustained improvement resulted in the capability process being escalated through different stages. On 14 November 2019, the Registrant submitted a letter resigning from her employment with the Trust.
11. The Final Hearing panel had a copy of the Registrant's statement dated 15 March 2021. Among other matters, the Registrant complained of the lack of training that had been offered to her. The Registrant's statement contained acknowledgements that she had made mistakes when working.
12. The Final Hearing panel did not find misconduct but it did find lack of competence. The panel found a number of failings of a similar nature extending over a period of time, including the repetition of the same error. The panel was concerned that the patient relevant to Particular 2 was unnecessarily prescribed antibiotics because of the Registrant's mistake, and that other errors would have had the potential to result in patient harm had they not been identified by other members of staff.
13. The panel at the Final Hearing did not find that the failings were minor, but equally it did not find them to be so gross as to require a finding of misconduct. There was no evidence of deliberate or reckless behaviour. The HCPC's witnesses spoke about the Registrant's "good attitude towards her work and her desire to improve". The panel therefore concluded that this was not a case in which it would be appropriate to make a finding of misconduct even taking all of the proven particulars in the round. The panel concluded that the root cause of the Registrant's difficulties was not attitudinal, but rather a lack of knowledge and skills. The panel found that the Standards of Proficiency for Biomedical Scientists were more appropriate in this case than the HCPC Standards of Competence and Proficiency.
14. Having regard to all the proven particulars, the panel found that the following Standards of Proficiency for Biomedical Scientist were breached:- Standards 1, 3, 4, 9, 13 and 12.
15. The panel found that the shortcomings identified were sufficiently wide ranging in time and type to justify a finding of lack of competence. The panel's finding of lack of competence had the inevitable consequence that the Registrant's fitness to practise as a BMS in 2019 was impaired. The panel was satisfied that the shortcomings identified were of a type that were capable of being remedied. That panel found an absence of evidence that they had been remedied and noted from the Registrant's own written submission dated 15 March 2021, that she had not worked within pathology since she left her employment with the Trust in late 2019, and accordingly that she would not have had the opportunity to address her shortcomings.
Review panel 29 June 2023
16. The first review panel on 29 June 2023 considered the evidence relating to the Registrant’s then current impairment and if impaired whether an Order remained necessary. If necessary, the panel would proceed to determine what was the most appropriate and proportionate sanction.
17. The review panel was satisfied that the Registrant’s lack of competence was remediable.
18. In respect of the personal component of impairment, the review panel found that the Registrant had not engaged in a meaningful manner, advising only that she had decided to leave the profession. In those circumstances, there was no evidence that the failures identified at the Final Hearing set out in paragraphs 62, 66 and 67 of that decision continued to apply. There were numerous breaches of the Standards of Conduct and Proficiency for Biomedical Scientists, based around lack of competence.
19. The Registrant had not worked in a laboratory since 2019 and had not produced evidence that she has taken any of the steps recommended by the panel at the Final Hearing. Accordingly, the review panel found no evidence that the risk of repetition has not diminished. There were multiple errors which had the potential to cause harm to the public. The Registrant had attributed the errors to a lack of training and by implication had minimised her own responsibility.
20. The review panel was not reassured that the Registrant would be able to work autonomously without errors if the Order of suspension was removed. Accordingly the review panel found that the Registrant was impaired on the personal component.
21.In terms of the public component, the review panel found that public confidence in the profession of Biomedical Science and in the regulator would be undermined if the Registrant was permitted to return to unrestricted practice. The reasonable member of the public would be concerned at the prospect of the Registrant returning to work unrestricted. This is because she still has not shown that the public can be reassured that she is competent to read results carefully and without making basic errors.
22. The review panel considered that the Registrant’s deficiencies in insight and lack of engagement were relevant factors in determining whether a sanction remained necessary, and if so, which sanction was the appropriate and proportionate sanction. The review panel considered each sanction in turn beginning with the least restrictive but decided against imposing a sanction less that a Suspension Order having taken into account, among other things that a Conditions of Practice Order would require to be so restrictive that it would in reality amount to a Suspension Order. The review panel then determined that a Suspension Order represented a proportionate outcome. That would, the review panel said, give the Registrant, who had worked as a BMS for over 2 years, the time to reflect on the Panel's decision and to decide whether she wishes to take steps in order to be permitted to return to practice.
Review hearing 12 July 2024
23. Ms Sampson on behalf of their HCPC invited the Panel to impose a Striking Off Order effective from the expiry of the current Suspension order on 4 August 2024.
24. Ms Sampson said that there were no updating documents available today or any information from the Registrant in regard to any steps that she may have taken in response the review panel’s suggestions of:
a. Fully engaging in the review hearing (including by video link).
b. Providing evidence of relevant CPD.
c. Providing a reflective piece relating to the matters found proved in this case.
d. While acknowledging that the Suspension Order will not permit employment as a BMS, if other laboratory work is undertaken (for example as a MLA), testimonials relating to that work.
25. Ms Sampson observed that, if the Panel was satisfied that:
• the Registrant’s fitness to practise remained impaired today, and
• that a sanction remained necessary to protect the public,
• that the Panel had power to impose a Striking Off Order as the Registrant had been subject to a continuous Suspension Order for a little over 2 years beginning on 7 July 2022.
26. Ms Sampson submitted that the factors for the Panel to consider included evidence (or absence of evidence) of:
• the steps that the Registrant has taken to address any specific failings or other issues identified in the previous decisions,
• the degree of insight shown by the Registrant and whether this has changed,
• the steps which the Registrant has taken to maintain or improve her professional knowledge and skills,
• whether any other fitness to practise issues have arisen,
• whether the Registrant has complied with the existing Order.
27. Ms Sampson highlighted that what was said by the High Court in the case of Abraheam v GMC [2008] EWHC 183 that the reviewing Panel’s task is to
“consider whether all the concerns raised in the original finding of impairment have been sufficiently addressed.”
In practical terms there is a persuasive burden on the Registrant, to demonstrate at a review hearing that [they] have fully acknowledged the deficiencies which led to the original finding, and addressed that impairment sufficiently “…through insight, application, education, supervision or other achievement”.
28. Ms Sampson submitted that nothing has materially changed since the substantive hearing. The Registrant has not discharged her “persuasive burden” and her fitness to practise remains impaired in relation to both the personal and public components.
29. In respect of sanction Ms Sampson took the Panel to the HCPC indicative Sanctions Policy. Considering each sanction in ascending order of seriousness, Ms Sampson invited the Panel to find that there was no sanction less than a Striking Off Order which met the demand of public protection or would serve to promote and maintain the public’s trust and confidence in the profession of Biomedical Scientist and in the HCPC as its regulator.
The Registrant
30. There were no submissions for or on behalf of the Registrant other than her email response of 21 June 2024 noted above.
Legal Advice
31. The Panel accepted the Legal Assessor’s advice, including that a Substantive Review is a two-stage process. The first task of the Panel is to decide whether the Registrant's fitness to practise is currently impaired and if so, to then consider what sanction, if any, is necessary and if necessary, is the appropriate and proportionate sanction available. Any sanction must always be the least restrictive but equally effective alternative to a Striking Off Order if that is possible. to impose.
32. The Panel has read the decision of the Final Hearing Panel and the previous review panel. It has taken into account the submissions of Ms Sampson on behalf of the HCPC. The Panel has approached its task carefully by adopting a staged process. It notes that it must determine whether the Registrant's fitness to practise is impaired today, taking into account the Registrant's conduct at the time of the events and any relevant factors since then, such as whether the Registrant has developed insight, whether the matters are remediable or have been remedied, and any likelihood of repetition. The Panel's task is not to punish the Registrant for past acts but that it is required to take account of past acts and omissions in order to make an informed assessment as to whether the Registrant's fitness to practise is currently impaired. The persuasive burden rests with the Registrant to show that she is no longer impaired. The Panel's role is not to conduct a rehearing of the Allegation nor is it to go behind the previous findings.
Decision
Current Impairment
33. The Panel has taken into account:
• the 'personal' component: the current competence, behaviour, of the Registrant, including any evidence of insight and efforts towards remediation; and
• the 'public' component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
34. The Panel has considered all the relevant material and has had regard to the HCPTS Practice Notes on 'Impairment' and 'Article 30 Reviews' and the HCPC 'Sanctions Policy'.
35. The Panel noted that this is a case that concerns a Registrant who, due to basic clinical errors was subject to a Capability Management Process by her employer and continued to make mistakes despite their support.
36. The Final Hearing panel concluded that the root cause of the Registrant’s difficulties was not attitudinal but a lack of knowledge and skills. The Registrant had been willing to participate in the capability process but had been unable to achieve the standards necessary. The Registrant had not provided the Panel today with any evidence that served to demonstrate that she is willing to continue to engage with steps necessary to improve her performance and to allow her to practice safely and effectively.
37. The Registrant has stated in clear terms, as noted above in her email response of 21 June 2024, that she no longer wishes to continue in practice as a Biomedical Scientist.
38. The Panel concluded that while the Registrant’s shortcomings were capable of being remedied, they had not been remedied. The Registrant had demonstrated only limited insight into what had occurred. The Panel recalled what was said by the High Court in the case of Grant (CHRE v NMC and Grant [2011] EWHC 927 (Admin) at paragraph 116 that insight is a critical factor in determining current impairment.
39. The Panel noted that the Registrant
• had not engaged in a meaningful manner in these proceedings
• had not worked in a laboratory since 2019
• had not taken any of the steps recommended by the substantive panel
• and the only communication received from the Registrant indicated that she had left the profession.
40. The Panel concluded that nothing has changed since the substantive hearing. The Registrant had elected not to attend these proceedings and she had not demonstrated that she has taken any of the steps suggested by the previous Final Hearing or Review panels.
41. The Panel reminded itself of the guidance offered by the Supreme Court in the case of Khan v GPhC [2017] 1 WLR 169 SC (Sc) that the Substantive Order Review Committee will also need to satisfy itself that the Registrant has fully appreciated the seriousness of the relevant breach(es), has not committed any further breaches of the Council’s standards of conduct, ethics and performance, and has maintained their skills and knowledge to date, and that the public will not be placed at risk by resumption of practice or by the imposition of conditional registration. Lord Wilson said:
The focus of a review is upon the current fitness of the Registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of the suspension. The review committee will note the particular concerns articulated by the original committee and seek to discern what steps, if any, the Registrant has taken to allay them during the period of his suspension. The original committee will have found that his fitness to practise was impaired. The review committee asks: “Does his fitness to practise remain impaired?
It is also noteworthy that, in the fifth report of the Shipman Inquiry, 9 December 2004 (Cm 6394), Dame Janet Smith, Chairman, when referring to reviews under section 35D(5) of the Medical Act 1983, stated at paragraph 27.267: “Review hearings are extremely important. They are the “teeth” behind the sanctions other than erasure and should focus the doctor’s mind on the need to undertake any necessary remediation.
42. The Panel arrived at the position that having reviewed all of the material in respect of impairment, that the Registrant has not discharged her persuasive burden. Accordingly, her fitness to practise remains impaired in relation to both the personal and public components.
Sanction
43. The Panel recognised that it may only impose a sanction if it is necessary to do so in order to fully protect the public. The Panel was satisfied that in circumstances where a Biomedical Scientist has not responded to the obligation placed on her professionally to protect the public by seeking to remove the impediments to her lack of competence, the public would be placed at unacceptable risk of harm were no sanction in place. Despite the Registrant’s repeatedly stated decision not to resume professional practice, she would be free to do so in the absence of any restriction.
44. Further, the Panel considered that the public would be troubled to learn that, seemingly, a significant restriction in the form of a Suspension Order had been allowed to lapse or was disapplied despite the risks that attended the Registrant’s un-remediated lack of competence and her impairment on both personal and public components.
45. In these circumstances, the Panel concluded that an Order remained necessary to protect the public.
46. The Panel then considered which of the sanctions available was the most appropriate and proportionate sanction, beginning with the least restrictive.
47. The Panel took into account the HCPC Indicative Sanctions Policy when considering the most appropriate sanction. It understood that the purpose of a sanction is public protection and maintaining public confidence in the profession, applying the principle of proportionality.
48. The Panel concluded that, considering the nature of the Registrant’s failings and the risk of repetition, that to make no Order or a Caution Order would not be in the public interest and would undermine public confidence in the profession. Additionally, as the Registrant has not engaged with these proceedings, has not provided any evidence that she has begun to remedy her failings and has stated that she is no longer working in the profession, a Conditions of Practice order would not be workable, measurable, or enforceable.
49. The Panel then considered the option of a further Suspension Order. However, the Panel noted that in paragraph 121, page 29 of the Sanctions Policy it states that:
50. 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;
• there is evidence to suggest the Registrant is likely to be able to resolve or remedy their failings.
51. The Panel found that there was no evidence that the Registrant had developed, or intended to develop, her insight or that her previous clinical errors are unlikely to be repeated.
52. Given that the Registrant has confirmed that she is no longer working as a Biomedical Scientist, any further Suspension Order would serve no useful purpose in protecting the public. It is increasingly unlikely that the Registrant would be willing or able to remedy her failings or to engage with these proceedings in the future.
53. In all of the circumstances, the Panel concluded that the most appropriate and proportionate Order was one a Striking Off Order.
54. The Panel came to this decision having had regard to paragraph 131 of the HCPC Sanctions Policy which states that:
• A Striking Off Order is likely to be appropriate where the nature and the 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 [in the case of lack of competence or health matters], where a registrant who has been suspended for 2 years continuously, fails to address a lack of competence; or
• Is unwilling to resolve matters.
55. The previous review panel highlighted at paragraph 41 of its decision that the option of a Striking Off Order would be available at this review. The Registrant was therefore put on notice that this was a possible outcome. Despite that, the Registrant has not provided any submissions for the Panel’s consideration. Instead, as noted above, the Registrant as confirmed her decision that she is no longer intending to pursue a career as a Biomedical Scientist.
56.In the absence of any evidence of remediation and insight or of any evidence that the Registrant is willing to resolve matters, the only appropriate Order today is a Striking Off Order.
Notes
ORDER: The Registrar is directed to strike the name of Mrs Grace Masih from the Register from the date this Order comes into effect.
The Order imposed today will apply from 04 August 2024.
Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the Order it has made against you.
Under Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.
Hearing History
History of Hearings for Grace Masih
| Date | Panel | Hearing type | Outcomes / Status |
|---|---|---|---|
| 12/07/2024 | Conduct and Competence Committee | Review Hearing | Struck off |
| 29/06/2023 | Conduct and Competence Committee | Review Hearing | Suspended |
| 28/06/2022 | Conduct and Competence Committee | Final Hearing | Suspended |
| 11/11/2021 | Conduct and Competence Committee | Final Hearing | Adjourned part heard |
| 28/06/2021 | Conduct and Competence Committee | Final Hearing | Adjourned part heard |