Matthew Lane

Preliminary Matters

Service

1. The Panel had been provided with a service bundle which included a copy of the Notice of Hearing letter dated 26 November 2024 which had been sent, on that date, to the Registrant by post. The Panel also had proof of posting to the address shown on the HCPC Register.

2. The Panel had also been furnished with evidence that a further copy of the Notice of Hearing letter had been sent on the 7 January 2025 to a different address. The Panel again had evidence of posting to that additional address. It appeared that the different address to which the duplicate Notice of Hearing letter had been sent was an address identified by Capstick’s enquiry agents as being the current address for the Registrant. That latter letter had been signed for on delivery with the name ‘Lane’.

3. The Legal Assessor advised that it was incumbent on the Registrant to ensure that the address shown on the HCPC Register was their correct and current address. Under the rules as they relate to postal service, the HCPC had to show evidence of posting, and not of receipt. She advised that the Panel was to ensure that the information within the Notice of Hearing letter showed the correct time, date and mode of hearing and had been dispatched more than 28 days in advance of the hearing.

4. The Panel considered that there had been good service in that, on 26 November 2024, the correct information relating to the hearing had been sent by post in sufficient time in advance of the hearing date to the address shown on the HCPC Register.

Proceeding in the absence of the Registrant

5. The Panel had been provided with a bundle of papers entitled, ‘Proceeding in the absence of the Registrant’ and in that bundle of documentation were details of the steps the HCPC had taken in the last four years to engage with the Registrant. From that documentation the Panel was able to identify that on one occasion, in February 2024, the HCPC’s solicitor’s attempts may have been successful in that there was an electronic confirmation of delivery of a hearing bundle that was signed for at the Registrant’s registered address. It was noted, however, that the signature of the recipient on that occasion had been illegible.

6. The Panel was informed that the Registrant has not been in contact with the HCPC since 7 March 2020, when he self-referred. The HCPC has made several attempts, by means of using both emails disclosed by the Registrant, one being on his registration record and the other recorded on his referral in April 2019. The HCPC had also attempted to contact the Registrant by post and on two occasions had employed the services of an enquiry agency. The agency employed at the end of 2024 had identified a new address and this was the one to which the second Notice of Hearing had been sent.

7. That information provided the Panel with a background for the HCPC’s application to proceed in the Registrant’s absence. The HCPC emphasised the following:

• Despite all reasonable efforts the HCPC had used to engage with the Registrant, there had not been any response from the Registrant.

• There was no indication that the Registrant would engage if there were an adjournment of this hearing.

• The matters particularised in the Allegation are now many years old and any further unnecessary delay would further impact on this case and the witnesses involved in it.

• There are ten witnesses warned for the hearing ready to provide their testimony.

• It was in the public interest that this matter should finally be concluded.

8. In reaching its decision the Panel took into account the factors cited by the HCPC in support of its application to proceed in the absence of the Registrant. The Panel considered the following of particular import:

• The Registrant had not sought an adjournment, and the Panel did not consider that adjourning the hearing would secure the Registrant’s attendance in future given the history of engagement.

• The Registrant had a duty to engage with his regulator, and he had consistently not done so.

• There is a requirement for the Panel to deal with matters expeditiously and these events now date back to between 2011 and 2019.

9. Having considered all of those matters, and the public interest in seeing this matter concluded, the Panel decided it would continue with the hearing in the Registrant’s absence as no purpose would be served in further delay.

Amendments to the Allegation

10. The Panel had identified three small changes that should be, in the interests of accuracy, made to the Allegation. Those had been identified before there was a finding of fact and were:

• The deletion of the words ‘into a computer screen’ in particular 3b). Those additional words were not reflective of the evidence before the Panel.

• The change of the date within 5f), for whilst the date of the raising of the Pathology Incident Report (PIR) was 7 April 2012 the incident took place on 24 March 2012.

• The correction within 5f) of ‘ICQ’ to ‘IQC’.

11. The Panel sought the Legal Assessor’s advice as to whether it had the power to do so and she directed the Panel to the case of Professional Standards Authority v HCPC and Doree [2017] EWCA Civ 319, in which the Court of Appeal acknowledged that the HCPC, unlike other regulators, had no statutory basis for making amendments to an allegation. However, that court accepted that there was a common law power to do so. It was established in Doree that this power to amend could be exercised even after a panel had made a finding of fact, so long as in so doing did not cause any prejudice or unfairness to the Registrant.

12. The HCPC supported those proposed amendments.

13. The Panel considered that no prejudice or unfairness was caused to the Registrant by making the amendments and would better reflect the accuracy of what has been alleged.

Background

14. The Registrant was employed as a Band 6 Biomedical Scientist by the North Bristol NHS Trust (The Trust) from 7 September 2007 to 10 October 2019.

15. A number of different issues involving the Registrant came to light whilst the Registrant was working within the Clinical Biochemistry Department and those included alleged incidents of poor performance and concerns about the Registrant’s conduct. Those matters were:

• The Registrant not responding appropriately to reasonable management requests;

• The making of inappropriate comments;

• Behaving inappropriately towards other members of staff;

• Clinical incidents that occurred during the period 2011 to 2018 arising from the Registrant’s misconduct or lack of competence whilst working in the Clinical Biochemistry Laboratory.

16. The Registrant referred himself to the HCPC on 4 April 2019 having been, according to the Registrant, suspended by the Trust on 5 March 2019. In the referral the Registrant identified the issue giving rise to the referral as relating to the Registrant’s involvement in the support of a colleague who had been the victim of alleged disability discrimination by the Trust.

Evidence

17. The Registrant had not provided any written documentation or submitted any representations to this Panel, nor to any former panel involved in the HCPC hearing process.

18. The HCPC had provided the Panel with a large bundle of documentation presented in support of the testimony of the ten HCPC witnesses. The Panel also accepted the sworn testimony of one further witness, SE.

19. The Allegation before the Panel falls properly into three areas of concern. Firstly, the Registrant’s relationship and reaction to Trust management processes and policies as identified in particulars 1a), 1b), 1c), 3a), 3c) and 3d). Secondly, the Registrant’s conduct in relation to his colleagues as identified in particulars 2a), 2b) 3b) and 4. Thirdly, his working practices arising from the Registrant’s lack of adherence to established standard procedures as identified in all sections of particular 5.

20. The Panel received oral evidence of the management structure and the rotational working processes employed within the Biomedical Science Department. The Panel had not been provided with fuller information about the Trust’s overall management structure, but from the oral evidence the Panel was able to establish that this structure resulted in the Registrant having two line managers, although their ambit was different. One line manager, as that name would be understood within an organisational hierarchy, was AO (a Band 8a Lead Medical Scientist in the Clinical Biochemistry Automated Laboratory) who was the person who would raise issues of a wider nature than day-to-day processing of samples, such as behaviour towards colleagues and undertaking of appraisals. However, dependent upon where the Registrant was during his rotational progress through the three sections within the department, he would have a second senior who oversaw his work whilst in that section, and who, for day-to-day management processes, was his line manager.

21. Within the department’s three sections there were individual work benches. On each bench specific processes were carried out by shift members. This working pattern meant that colleague contact was intermittent and limited to the period during which colleagues may overlap during rotation through the sections, and which shift they were working.

22. The Panel heard that the process of organisational changes had resulted in the Trust’s two teams of Biomedical Scientists (situated previously at Frenchay and Southmead Hospitals) being brought together in 2014 on one site. The Registrant had worked at Frenchay Hospital. The process had taken place over a period of time, and it was acknowledged by those who gave evidence on this, that it had not gone without issue, as the two teams required time to integrate.

23. The inconsistencies of working practices across the one newly formed team became the subject of review and revision. It was at this time that changes in the Registrant’s attitude towards work were identified. During this period colleagues were given promotions whilst the Registrant remained a Band 6. According to the evidence of PH, who had been promoted in 2011 from being a workbench colleague of the Registrant’s, to the role of Quality Manager, this was also a period during which those who were not performing well had been identified and appropriate steps taken to address practice issues. PH confirmed that at this time the Registrant was not the worst offender in lack of adherence to processes.

Management processes

24. AO stated that at this time in 2015, the Registrant’s attitude towards him was upsetting. The Registrant had referred AO to the HCPC and in day-to-day dealings the Registrant had ignored him and would not talk to or respond to him verbally. AO stated that this lack of engagement with him had been the reason why some issues of organisational line management were subsequently delegated by AO to others to whom the Registrant showed less animosity.

25. Person B, who since May 2017 had been Lead Healthcare Scientist, gave evidence to the Panel that she was responsible for arranging the Registrant’s appraisal in 2018 it having been identified that the Registrant had only had one appraisal during his employment with the Trust and this had been in 2015. She said that she had twice emailed the Registrant (on 5.09.18 and 2.10.18) to arrange an appraisal and not received a response from him. She recalled that at some time after sending one, or possibly both of those emails, she had a conversation with the Registrant about arranging his appraisal. In response the Registrant had told her that he did not want to do an appraisal and implied that management did not care, and that an appraisal was pointless.

26. The second area of concern at this time was the Registrant’s failure to undertake a competency assessment whilst working within the Toxicology section. The Registrant had joined this section in December 2017/January 2018 and worked there until December 2018. As part of a Biomedical Scientist’s (BMS) rotation round the department they are required to undertake a competency assessment to ensure that their working knowledge as pertaining to that section’s work remained up to date. The competency assessment was intended to ensure that the practitioner had the ability to perform maintenance, understanding of the assay they are training in, reviewing Internal Quality Control (ICQ), troubleshooting, reviewing and releasing results.

27. HP, who was responsible for the Registrant’s training whilst in the Toxicology Section, told the Panel that she had made several attempts to ensure that the Registrant undertook the competency assessment relating to drug abuse. She had expected it to take only a matter of weeks to complete. She told the Panel that despite many reminders the Registrant had failed to do so. At one point when questioned by her as to why he had not completed it the Registrant had given the excuse that he wished to complete the task using his laptop rather than handwriting it. The assessment was eventually completed near to the end of his rotation on 18 November 2018. HP expressed her concerns about the quality of the assessment however that does not form part of the HCPC’s allegation and so was not taken into consideration by the Panel.

28. This lack of engagement was a matter of concern and the Trust began an investigation under the Trust’s Disciplinary Procedure. The Panel received evidence from the two managers who had been involved in undertaking the investigation into the Registrant’s conduct in 2018 and 2019.

29. Person D had been appointed as investigating officer by Person A on 27 November 2018, and by way of letter dated 4 December 2018 he had invited the Registrant to a meeting on 20 December 2018. The two areas of concern outlined in that letter were:

“1. You have not responded to a reasonable management request to arrange a date for your annual appraisal.

2. You have failed to complete your competency testing assessment on three separate occasions.”

30. The Registrant had taken issue on the impartiality and fairness of this appointment of Person D by Person A.

31. The Registrant did attend the meeting with Person D and in this he is recorded as stating that he had been away from 5 September when Person B had emailed him about undertaking an appraisal. He is also recorded as stating that he was willing to undertake an appraisal but not with Person B. When he received the minutes of that meeting he had responded to Person D by email in tones which were considered sufficiently inappropriate that they form the basis of particular 3(c). Person D withdrew from undertaking the investigation.

32. The Panel was told by AJ that he had subsequently been appointed to complete the Trust’s investigation. He gave evidence that he had reviewed the history of concerns raised by the Registrant about other colleagues and about concerns raised by others about the Registrant. He had taken time to meet with the Registrant on several occasions and had interviewed a number of the Registrant’s colleagues.

33. AJ’s evidence was that the impact of the Registrant’s conduct towards his colleagues had been considerable. Some of those involved had been distressed during the interview process to such a degree that he was concerned personally and had taken steps to follow up on checking their wellbeing afterwards. AJ told the Panel that when the Registrant was told of his colleagues’ reactions to his behaviour he was initially unable to comprehend but after further discussion the Registrant had “almost apologised” as he had not realised the effect he was having on people.

Behavioural issues

34. During the witness evidence the Panel heard a great deal about the Registrant and his unusual manner. Person E told the Panel that the Registrant was in some respects a ‘one off’, for example, he was the only person to have his laboratory coat embroidered with his name on the breast. In terms of his practice, the Panel heard evidence from AO that the Registrant had the requisite skills and knowledge and was well versed in the underlying science but at times displayed an unusual approach to solutions and situations. Several witnesses referenced that the Registrant had a messy and unsystematic way of working which had always been the case but had increased over time.

35. Person B had told the Panel that the Registrant would on occasion just leave his post without telling her. In one instance, which is not the subject of a particular, he had disappeared at short notice to give assistance to a colleague in an employment issue. Whilst he had obtained permission from two other seniors, he had not approached her and so she was unaware of the reason for his absence. She had considered his response to her concerns at this behaviour to be disproportionate. In addition, HP said relation to the specific incident which is the subject of particular 1(b) he had been uncooperative.

36. The evidence of SE, DM, AO and HP all supported the position that the Registrant could on occasion become agitated and appear to lose physical control.

Clinical competency

37. The Panel had before it twenty-eight Pathology Incident Reports (PIRs). This form was utilised to ensure that all issues of concern, or any results that were outside the reference range, were highlighted and investigated, and if necessary corrective steps taken. The reports before this Panel were all identified by the Trust as relating to issues involving the Registrant and were matters that could have been addressed though better or different working practices. A PIR can be raised by anyone and when an individual identified that they have made an error, or that some reading they have obtained is out of the ordinary, they can complete a PIR which will then be assessed by the Quality Manager.

38. PH (referred to above) told the Panel that by reviewing this data from PIRs he was able to identify where process changes were required, or training and competency issues should be explored. He told the Panel that the data sometimes indicated the need for a revision to the internal Standard Operating Procedures (SOPs) because, for example, it showed a trend in staff making a particular error on a frequent basis. This data also identified personal failings and habits and in the Registrant’s instance there was a lack of adherence to SOPs and Policies such as the Telephone Policy. The Panel had been provided with copies of relevant Trust documentation.

Submissions on facts

39. The hearing had been scheduled for two periods of time, the first in January and the second in February. During the period in-between, the HCPC had taken the opportunity of providing the Panel with a spreadsheet on which the particulars of the Allegation were cross-referenced with witnesses and their supporting documentation. The HCPC submissions in relation to those particulars were set out in a final column on the spreadsheet. The HCPC at the resumed hearing relied upon this spreadsheet as the basis for its submissions on each of the particulars of the Allegation. This being the case, the Presenting Officer focused her presentation upon the witness evidence. As she identified, this was a witness-heavy case featuring ten live witnesses and one sworn statement from a witness who was unable to attend in person.

40. In relation to those witnesses, the HCPC considered that they had given an overall consistent impression of the Registrant as being a person who had knowledge and skill but was untidy and poorly organised in his working practices. Some of the witnesses did not know him until they were involved in the investigations, whilst others had known him for the whole period he had been employed by the Trust. During the period the Registrant worked for the Trust there had been a merger of two hospitals in 2014. This merger process had been gradually implemented over a period of time. It was as a result of this merger and review of processes that SOPs had been introduced.

41. The HCPC submitted that there was no evidence of collusion between the HCPC witnesses, and all had painted the same picture that the Registrant’s practice had always been chaotic and messy but his enthusiasm for work had declined over the years. His working practices did not accord with the SOPs and when he was under increased scrutiny his practice had become more chaotic. The Registrant was identified as having become increasingly suspicious of management with his demeanour becoming more aggressive.

42. Person E had known the Registrant for the whole of his period of employment and had described the Registrant as a friend who she socialised with. That friendship had continued after the events that had resulted in her raising with AO her concerns about the fact that the Registrant’s ‘joke’ had now gone too far. The HCPC considered that her evidence was fair and balanced. Person E had referred to the Registrant as being ‘scatty’, ‘untidy, and all over the place’, a description which others had agreed with.

43. PH had told the Panel that he had worked alongside the Registrant in 2010 and had been promoted to a Band 7 in 2011 in the capacity of Quality Manager, a position he occupied till 2013. PH had been able to identify that there were issues and patterns arising from the Registrant’s performance of his duties. These were mainly in relation to not following processes and the documentation he exhibited supported that view. On a personal level PH liked the Registrant and had been happy working alongside him.

44. HP had been junior to the Registrant in 2007 and by 2017 was one band higher than him which had produced an awkward working situation. The HCPC submitted that HP had not displayed any animosity to the Registrant and was in the HCPC’s view a credible, honest and balanced witness. Her account of events was supported by reports and emails.

45. Person C had no knowledge of the Registrant, and her involvement was only for three months having been asked to carry out an investigation in November 2015 under the Trust’s Bullying and Harassment Policy. Her evidence related solely to the incident identified at Particular 3a) relating to the sending of a threatening and unprofessional email. Again, in the HCPC’s view, she was a credible witness.

46. There were two eyewitnesses to the events which relate to the throwing of the mouse as set out in particular 3b). There had been mutual animosity between SE and the Registrant. When the Registrant had become aggressive SE had been sufficiently concerned for her own safety that she had moved to an office. DM described the events that led to this throwing of a mouse and his and SE’s accounts were supported by AO, who reported what he had been told at the time and recorded within the documentation. The HCPC considered that those three contemporaneous accounts were consistent and could be relied upon.

47. Person B had been one of the Registrant’s managers and had been involved in the setting up of an appraisal meeting. She had progressed to Lead Scientist and during 2014 to 2017 worked with the Registrant. Her evidence was supported by production of PIRs, training records and emails. When returning from maternity leave in 2012 she identified a distinct change in the Registrant in that he had lost his motivation. She described his working bench as ‘chaotic’. In the incident in April 2018, the subject of particular 2b), she had described the Registrant as going red in the face and leaning threateningly across the desk. In the HCPC’s view she had given full and honest replies to questioning.

48. LM was, at the time of working with the Registrant, the Quality Manager for the Clinical Biochemistry Department. From July 2014 until the Registrant’s resignation, LM had contact through meetings, training events and had infrequent contact in passing with the Registrant in work and none outside of the office. Her evidence was supported by a number of PIRs which raised concerns about the Registrant’s practice. LM pointed out that on three out of nine occasions when the Registrant’s name appeared, these PIRs were not specific to him. She exhibited PIRs raised by her where she had identified issues involving the Registrant. It was submitted that her evidence could be relied upon.

49. Person D had been appointed in 2018 to carry out an investigation and before this date he had no knowledge of the Registrant. He arranged meetings and took statements from colleagues involved with appraisal, assessment tests and training. From that, he had identified that the Registrant was not being cooperative with the management. The Registrant was personable and amiable in meeting with Person D, however, subsequent actions and written responses from the Registrant were negative. Person D had chosen to withdraw from his role as investigator due to concerns raised by the Registrant and the Registrant’s lack of engagement. In the HCPC’s view Person D gave a balanced view of events.

50. AJ had no contact with the Registrant before being appointed to continue the investigation following Person D’s withdrawal. He was a very senior manager and had taken a wider view of the nature of the investigation he should carry out. AJ had identified in interviews how emotional some of those involved had been when recounting events involving the Registrant. Such had been his level of concern that he had undertaken something of a pastoral role with those members of staff after interviews. [redacted[ The HCPC considered his evidence to be fair, balanced and honest.

51. AO had worked with the Registrant for the whole period of 2007 to 2019 in a management role. He described the Registrant as being ‘difficult to manage’ and over the years what had initially been a good relationship had broken down. In the last few years, the Registrant had refused to talk to AO which made things very awkward. At one point the Registrant had reported AO to the HCPC which was very upsetting. AO described the Registrant as happy during his early years at the Trust but over time he had become increasingly suspicious and aggressive. His working style was chaotic, untidy and he would not adhere to the SOPs. AO considered that the Registrant believed that there were efforts to show him in a bad light and that he had been pushed into resigning. The HCPC submitted that this was balanced and fair evidence which the Panel could rely upon.

52. The Panel was, in the HCPC’s view, able to find all of the facts proved based on the evidence produced in this hearing.

Findings of Fact

53. The Panel has set out comprehensively the submissions of the Presenting Officer in relation to the HCPC witnesses as this accords with its view of them. The Panel considered the witnesses to all be credible, and overall their oral evidence had been consistent with their sworn statements. In response to questioning, they had all provided open and honest responses and given testimony that could be relied upon.

54. The Panel sought and accepted the Legal Assessor’s advice on the matters that should be taken into account at this fact-finding stage. The Panel was aware that the burden of proof was upon the HCPC to prove each and every element of the Allegation to the requisite standard, namely on the balance of probabilities. In so doing, the Panel took into account all information placed before it.

Findings

1. You did not respond appropriately to reasonable management requests, in that:
a) In or around September and October 2018 you failed to engage with management requests to arrange an appraisal and/or refused to undertake an appraisal as required by your employer.

55. The evidence of Person B and AO was that the Registrant had only been the subject of one appraisal during his whole period of working for the Trust, and that appraisal had been undertaken by Person B as the Registrant had not, at that time in 2015 or since, been engaging with AO. Person B had written twice to the Registrant to arrange an appraisal meeting in September and October 2018 and not received a response.

56. The Panel noted the Registrant’s two seemingly contradictory statements on this issue. The first was in response to Person B’s verbal enquiry as to why he had not arranged a date for his appraisal. Person B stated that the Registrant’s response had been that he did not want an appraisal, management did not care, and appraisals were pointless. The second was from the minutes of the subsequent meeting with Person D where the Registrant is recorded as stating that he was away during the period when Person B’s emails had been sent, and that he would be willing to have an appraisal with someone other than Person B.

57. The Panel further noted that an appraisal was not subsequently held. The Panel had before it all relevant documentation and based on that and the live and written evidence of Person B, AO and Person D, which this Panel accepts, this particular is found proven.

1b) Between December 2017 and 16 November 2018, you did not complete the competency assessment (Urinary Drug screening / Opiate / Amphetamine) as requested.

58. HP stated she had reminded the Registrant to undertake this assessment during the early months of his rotation to this section and chased him to do so on several occasions subsequently. The assessment was eventually completed on 16 November 2018, some eleven months after his rotation started. HP’s expectation was that this competency would be completed within a few weeks of rotating to the section which had been December 2017 or January 2018.

59. The Panel noted that the Registrant had been questioned about this matter by Person D during the investigation and his response had been that they (management) would not let him work on a bench if they did not think he had the relevant competency. The Registrant had also relied upon the fact that he did eventually complete the assessment.

60. The Panel accepted the documentary and oral evidence of HP and Person D and so finds this particular proven.

1c) In or around September 2018 you did not log the Internal Quality Control results for the 2 extra analytes before running forensic urinary samples.

61. HP’s evidence was that there had been changes to the Internal Quality Control (“IQC”) as a result of an upgrade of their analyser which had produced two extra analytes. The Registrant had failed to log in the two extra IQCs and therefore there was no way to confirm the accuracy of the results.

62. In an email from HP to CM there was a request for the Registrant to be given further guidance on how to correctly record the extra analyte results. The evidence of HP was that the Registrant failed on three occasions to take advantage of opportunities to update his knowledge of this process.

63. The Panel has the supporting documentation relied upon by HP and has concluded that on that evidence and the oral testimony of HP this particular is proven.

2. You made inappropriate comments and/or behaved inappropriately in that:
a) On 22 February 2019 you incorrectly stated that Person A had a history of gross misconduct.

64. The Panel had copies of the notes of the investigation meetings Person D had with staff members following his appointment to investigate the Registrant’s behaviour. The Panel also had a copy of the email of 22 February 2019 in which the Registrant had committed to writing his allegation of Person A’s previous alleged conduct in his former employment. The Panel had copies of the newspaper articles which the Registrant had attached to this email.

65. The Panel noted Person D’s investigation outcome, which recorded that whilst Person A had been the subject of investigation, no finding of gross misconduct was made. Based upon the documentation and oral evidence of Person D the Panel finds this proven.

2b) On 17 April 2018 you behaved in an aggressive and/or intimidating manner towards Person B during a meeting.

66. Person B gave clear evidence to the Panel of how the Registrant had appeared agitated at the start of the meeting, his agitation arising from his concerns about how management were dealing with a colleague in another department. The Registrant’s behaviour had then changed noticeably during the meeting. Person B described the Registrant as becoming upset, going red in the face, and leaning across the desk towards her in a threatening way.

67. Person B’s account of the meeting is supported by her email to senior managers in which she identified how difficult and upsetting this meeting had been. In that email the Registrant is described as being agitated at the start of the meeting. Person B began to feel so intimidated that she left the room for her personal safety. In his evidence, AJ said that when he interviewed Person B about this incident, she had become very emotional when recalling it.

68. Based upon the documentary and oral evidence the Panel finds this particular proved.

3. You demonstrated inappropriate and/or unprofessional behaviour in that:
a) On or around 13 November 2015 you sent an email which was of a threatening and/or unprofessional nature to Person C.

69. Person C was a senior manager who had written a letter to the Registrant using a standard template, inviting him to attend a investigatory meeting about a concern she believed he had raised. The Registrant’s response to that invitation had taken Person C by surprise. In that email the Registrant stated that:

"In future you will desist from knowingly sending false information by post. You will desist from sending any material intended to cause offence, by post or electronic means. Any further act of malicious communication will be reported to the Police."

70. Person C told the Panel that she did not find this response upsetting or threatening but appreciated that other people may. She found the content aggressive and thought it could be described as a disproportionate reaction to a straightforward meeting invitation. The Panel considered the wording used by the Registrant to be unprofessional and so this element of the particular is found proven.

71. In relation to the issue of this email being ‘threatening’, the Panel could identify no actual or intimated threat that would cause someone to be afraid. The Panel considered that the possible involvement of the Police was more in the nature of a statement to invoke his right to bring malicious matters to their attention. The Panel has therefore concluded that the wording chosen does not pass the threshold for being ‘threatening’ and so this element of the particular is not found proven.

3b) On or around 10 March 2016 you acted in an aggressive manner by throwing papers and/or throwing a computer mouse.

72. DM and SE were eyewitnesses to this event. DM gave evidence which was consistent with his sworn statement. DM told the Panel that the Registrant was expected to have finished his work about 5pm and hand over at the end of his shift to SE, but he was not ready to do so. When requested on several occasions to finish up and do his handover he ignored DM but was seen to become increasingly agitated by the requests. On the final occasion of being prompted to give a handover the Registrant had reacted by going red in the face and throwing the papers and mouse.

73. SE’s sworn statement said that during the period when the Registrant was being asked to stop work and do the handover she had become so concerned by the Registrant’s behaviour (“he picked up a computer mouse and threw it at a computer screen”) that she left the laboratory and went to sit in an office. AO gave an account of how this matter had been reported to him by SE and this accords with the recollections given to the Panel by DM and SE. Based on this documentary and oral evidence the Panel finds this particular proven.

3c) On or around 3 February 2019 and/or 22 February 2019 you sent emails to Person D which were unprofessional and/or discourteous.

74. Person D exhibited the two emails that had been sent to him by the Registrant. In the email of 3 February 2019 the Registrant states:

“It is unfortunate that PV, Person B and Person A should seek to undermine themselves by acting dishonestly. I have already drawn attention to Section 1.5 of the HCPC’s Standards of Conduct, Performance and Ethics (SCPE). I ask that in addition you familiarise yourself with Sections 5, 7, 8, 9 and 10, particularly Section 9.

Colleague A has given me his consent to share this information. I note from my records that I have challenged the discrimination to which Colleague A has been subjected four times in writing, in accordance wight the SCPE. This is especially important since Colleague A is not only an employee if NB, but also a patient. I thank you for reminding me that the Disciplinary process is not a legal process. It is not my wish to prejudice any forthcoming legal process. You may wish to seek advice.”

75. In the Panel’s view this email was unprofessional and discourteous, in particular due to the allegation that colleagues have been acting dishonestly without any evidence of this, and so in relation to this element of the particular it was found proven.

76. In the email of the 22 February 2019, the Registrant states:

“You have not received a signed copy of the notes that were produce following our meeting 20 December 2018 because the notes, are not an accurate reflection of our meeting. However you may wish to assume that the notes are an accurate account. Despite my request, I have not been allowed any time to complete the transcript. I can see little point in sending you a copy of the recording through the post since, it is likely you will deny having received it.”

And further on he states:

“I remain concerned that Person A the Disciplinary Manager who appointed you and who will be conducting the disciplinary hearing, has a history of gross misconduct. Please refer to the articles above, which adequately cover the first three sections of the Computer Misuse Act 1990. Please also refer to section 67 of the Sexual Offences Act 2003 (attached). Such a situation is unlikely to inspire confidence in the Trust’s ability to conduct a credible investigation.”

77. The Panel noted that the Registrant’s reference to gross misconduct by Person A is considered separately in allegation 2(a) and so the Panel did not take that specific comment into account when considering this particular. That matter aside, the Panel also considered this email to be unprofessional and discourteous. The Particular was therefore found proven in its entirety.

3d) On or around 8 October 2018 you sent a letter to Person B which was unprofessional and/or discourteous.

78. Person B displayed the recorded delivery letter that the Registrant had sent to her on 8 October 2018. The Registrant had sent with this letter a copy of the flash drive on which there was a recording of a meeting the Registrant had with PV on 19 April 2018. The Panel considered the language used in this letter to be defensive and robust, possibly even abrupt and blunt. The Registrant has set out in this letter brief reasons for not intending to be involved in any proposed meeting with Person B.

79. Looking at the letter as a whole, it was difficult to identify any specific wording which would take the terminology over the threshold into being unprofessional or discourteous. In the Panel’s view the Registrant had given his robust defence of his own position and was not disproportionate given how difficult and strained the relationship with management had become had that point. The Panel therefore found this particular not proven.

4. In respect of Person E you:
a) called her a “lesbian” in or around November 2011; and/or
b) gave her a lab coat with “lesbian” embroidered on it.

80. Person E stated that before and after the events described in her witness statement, she had maintained a good relationship with the Registrant. Person E acknowledged that mutual banter and “mickey-taking” was a feature of their relationship and this was acceptable to her. However, she said that the Registrant had taken things too far by repeatedly calling her a “lesbian”. This had begun to annoy her so she asked him to stop. When he called her a lesbian again and gave her an embroidered lab coat, she raised the issue with AO. After AO addressed this issue, the Registrant stopped referring to Person E in those terms. The Panel found both parts of this particular proven.

5. You were responsible for a number of incidents including as follows:
a) On or around 19/04/2011 you did not put an ‘unsep’ comment on the sample and ask for a repeat sample.

81. The PIR for this incident was raised by PH. An entry in the Root Cause Analysis section of the PIR stated that the Registrant had processed the sample incorrectly.

82. Any results from a sample which had been in the laboratory for over eight hours would reflect the fact that potassium and glucose readings after such a period of time could not be relied upon. In such a situation the sample should have been marked as ‘unsep’ meaning unseparated and a further sample requested. The Registrant had not done this but instead went ahead and processed the sample which was incorrect.

83. Based on the oral evidence of PH and the supporting documentation the Panel found this particular proven.

5b) On or around 28/07/2011 you did not follow the correct telephone policy in that you did not take a name when reporting urgent results.

84. PH gave evidence on this and exhibited the PIR he had raised at the time which identifies that the correct procedure had not been followed. The Panel had sight of the Telephone Policy. It was evident that on this occasion the Registrant had failed to follow the Telephone Policy. The Panel therefore found this particular proven.

5c) On or around 28/07/2011 you did not phone through a result as per the phone policy.

85. PH gave evidence on this and exhibited the PIR he had raised at the time recording this event. This was another breach of the Telephone Policy by the Registrant. The Panel found this particular proven.

5d) On or around 15/09/2011 you did not reject a sample despite identifying that the sample and request form contained different patient details.

86. PH’s evidence included reference to the ways in which the Registrant had attempted to clarify why there was a mismatch in the patient details between the sample and the request form. However, the correct procedure was to reject the sample. PH told the Panel that this was the safest way to ensure that there was no possible mismatch of result and person. The Panel found this particular proven.

5e) On or around 02/04/2012 you incorrectly reported a urine cystine result.

87. PH exhibited the PIR he had raised relating to this incident. He stated that the correct way of dealing with this situation was to request a further sample. This course of action would unfortunately involve the patient in producing another timed urine sample, but this was preferable to providing a result that may not be accurate. The Panel found this particular proven.

5f) On or around 24/03/2012 you did not correctly follow the QC policy as the IQC for potassium was out of range and you did not take action to correct this.

88. PH explained to the Panel the reasons why the range was tight for readings of potassium. The Registrant knew the range was tight and would have known why it was important to give accurate readings within that range. There are three elements in PH’s view where the Registrant had been at fault: not following the QC policy; not setting the range correctly and taking no steps to correct the range. The Panel therefore considers that on the evidence before it this particular is proven.

5g) On or around 08/05/2012 you:
i. reported an incorrect interpretation of a Xanthochromia sample result; and/or
ii. did not follow the SOP for reporting Xanthochromia results

89. PH had raised the PIR for this incident. Under the root cause analysis PH had recorded three observations regarding the Registrant: “1. Wanted to get the result out – why? 2. Was aware of the SOP. 3. Not signed off competency for manual tests.”

90. Under the SOP a BMS is, out of hours, allowed and required to report anything over a Xan 3 as a Xan 4. In so reporting a Xan 4, this result would automatically be reviewed the next day by a Clinical Biochemist. The Registrant went beyond his authority in reporting a Xan 8.

91. AO gave evidence that this initial report when reviewed the next morning it was reduced to Xan 5. The Panel has therefore found both parts of this particular proven.

5h) On or around 19/09/2012 you incorrectly reported a negative reading for two drug users on Methadone.

92. The Panel had a PIR recording that this sample should have been further diluted and in not so doing the results produced were incorrect and showed a negative. PH told the Panel that the Registrant knew what was required but had failed to do so in this instance. The Panel find this particular proven.

5i) On or around 11/10/2012 you froze a sample without decanting the plasma from the cells, making it unusable.

93. The PIR exhibited by PH records that:

"Received a primary fluoride oxalate analysis frozen. Sample sent analysed for glucose on 10.10.12. at 17.31 at Frenchay by ML and then primary sample was froze, without taking off the plasma. The sample is now unsuitable for lactate analysis."

PH stated within the root cause analysis that this incident was a failure to human error and competency. The Panel finds this particular proven.

5j) On or around 4/01/2013 you downloaded a wrong lot of Indirect Selective Electrodes on the F1 analyser.

96. PH exhibited the PIR which he had raised relating to this incident where the wrong lot number used for calibration had been recorded. The number entered was one digit out. ML was recorded as being the person who had opened the box and incorrectly uploaded the lot number. The Root Cause was recorded as being staff not checking calibration lots.

97. The Panel noted that there had been seven days between the upload with the wrong number and the date the problem was identified. In the intervening period numerous opportunities to identify the error had been missed by a number of people.

98. Based in the oral and documentary evidence of PH the Panel finds this particular proven.

5k) On or around 18/09/2015 you transmitted a sample to INET without identifying a low internal standard area and taking action in respect of this.

99. LM raised the PIR for this incident which had been identified by Person B. The sample involved in this incident related to a test for Tacrolimus, which was a drug given to transplant patients to prevent them rejecting their transplant organ.

100. The Registrant had undertaken an analysis and reviewed the result on the analyser but had failed to notice that there was a low internal standard area which would give a false result. The Registrant had released the result without double-checking. It is recorded that the root cause was the failure by the Registrant to follow SOP. Person B’s evidence was that the Registrant accepted this.

101. Based on the evidence before the Panel and the oral evidence of LM the Panel find this particular proven.

5l) In or around May 2016 you incorrectly communicated results to a GP for the wrong patient.

102. LM exhibited the PIR dated 17 August 2018 which she raised for this incident that took place on 18 May 2016 but was only discovered in August 2016 when a GP raised concerns. The error arose from the patient specimen identification number being one digit wrong. The results had been telephoned through to the GP by the Registrant but he had failed to properly check patient identity as required by the SOP and had not followed the Telephone Policy when making that call.

103. Based on the evidence from LM and the supporting documentation the Panel finds this particular proven.

5m) In or around May and/or September 2018 you analysed samples using incorrect positions on Quattro.

104. HP was the Registrant’s sectional senior line manager at the time. Within her sworn statement she records that:

“The BMS has to manually ‘tell’ the instrument ‘Quattro’ where each sample is located so that any results generated with regards to that specific space/position will then be recorded against whatever information has been programmed into the instrument.”

105. HP exhibited two PIRs relating to the incidents in May and September 2018 and the SOP as it relates to this process. Both incidents had been identified by LM who had raised the PIRs.

106. The incident in May 2018 identified that four results out of seven samples were correct whilst the other three results were incorrect. It was possibly due to one sample being missed or one sample being put through twice.

107. In relation to the May 2018 incident, the Panel was mindful that within the PIR the recordings made by LM raised some assumptions as to who may had been involved.

108. The recordings within the PIR made by HP, however, identified the Registrant as being the person who had run those sample batches. HP being his line manager and running the section would be able to establish that the Registrant had prepared the samples whereas LM, who as Quality Manager was one removed, could not.

109. The Panel noted that there had then been a discussion with the Registrant about the May 2018 error and the Registrant had not raised any concerns about his involvement in this incident or the undertaking of further training as recommended by HP. The Panel therefore felt able to be confident of the Registrant’s involvement in this incident and finds this element of the particular proven.

110. The other incident in September 2018 related to the failure to correctly allocate a sample to a position within Quattro with the result that an elderly man, who had no evidence of drug-taking, was ascribed a reading for a younger patient who was taking heroin.

111. The second incident in September 2018 occurred after further training was undertaken by the Registrant.

112. In relation to the September 2018 aspect of the particular, the Panel was not satisfied that, if an error had been made (and the Panel wasn’t satisfied this had been proven to the requisite standard), that it had occurred within the lab and not before the sample had arrived there. This was because when the sample was rerun, the result was the same. Accordingly, the Panel found the September 2018 aspect of this particular not proved.

5n) On or around 12/06/2018 you:
i. started up a system without checking that the ballast on the oil pump was closed causing hot oil to be spilled; and/or
ii. did not report until the end of the day that there was a problem with quality control and that no results had been released that day.

113. HP exhibited a PIR which covered both incidents.

114. In relation to 5(n)(i), HP gave evidence that she had guided the Registrant through the maintenance of the machine that morning and reminded him of the need to close the valve. She said in relation to 5 (n)(ii) that later that day the Registrant had identified that there was a problem with the machine. The Registrant had attempted to fix it himself but had failed to do so. It was at this stage in the day that HP realised that the Registrant had forgotten to close the valve and that hot oil had spilled.

115. The Registrant did not at this stage alert anyone to the problem or seek guidance or assistance. At no point had the Registrant sought assistance until the end of the shift when it was disclosed that no results had gone out that day.

116. Based on the evidence before it the Panel finds both limbs of this Particular proven.

5o) On or around 22/06/2018 you selected the incorrect patient when reporting results.

117. The evidence from HP and the exhibited PIR is that the Registrant had relied solely upon the name of the patient when reporting the result rather than checking other supporting information, such as date of birth. Failure to do so resulted in the result being posted to the wrong patient file.

118. Based on the information before the Panel, it found this particular proven.

5p) On or around 10/07/2018 you set up an MMA assay with a 1000 std when this only had a top std of 500.

119. LM informed the Panel that she had shown the Registrant how to correctly carry out this test under her direct supervision the day before this incident occurred. LM exhibited the PIR relating to this incident. According to NN in the Root Cause section of the PIR, the Registrant had failed to follow the SOP.

120. The Panel accepts the evidence of LM and the supporting documentary evidence and found this particular proven.

5q) On or around 4/07/2018 you booked a sample for a carbamazepine test when this should have been booked for phenobarbitone analysis.

121. LM exhibited this PIR dated 10 July 2018 although the event took place on 4 July 2018. The sample requiring analysis had been booked in incorrectly by the Registrant and there appeared to be no obvious reason for this error.

122. The Panel noted that the hospital was able to produce a second frozen sample for analysis. However, this had delayed the result.

123. The Panel found this particular proven.

5r) On or around 22/11/2018 you stored a sample in a reagent fridge instead of a sample fridge which was incorrect.

124. The PIR for this incident was exhibited by HP. The sample involved had been found in the bottom and at the back of reagent fridge within the Toxicology laboratory. The Registrant had failed to leave an indication of the location of the samples. The location chosen by the Registrant to store them was inappropriate and did not comply with the UK Accreditation Service policy.

125. The samples had been placed there on 22 November 2018 by the Registrant but not discovered till 28 November 2018, when he returned to duty. The Registrant is recorded as saying that he often stored samples in this location. The delay in processing was in breach of the turnaround periods for such a sample.

126. The Panel found this particular proven.

5s) In or around 2018 you registered a patient on Winpath with the incorrect date of birth.

127. The PIR for this incident was exhibited by HP. The Panel had supporting evidence from SE, who identified that there was an error and had been involved in the tracing of that error back to the wrong recording of the date of birth on the system by the Registrant.

128. Based upon the evidence of SE placed before it, and the oral evidence of HP, the Panel found this particular proven.

5t) On or around 28/03/2012 you booked a request under the wrong patient name.

129. In the PIR raised by PH it is recorded that the request had been booked in the wrong patient’s name by the Registrant. A colleague had identified this error and had then cancelled that entry and rebooked the request.

130. The Panel found this particular proven.

5u) On or around 16/03/2016, you did not identify a sample required dilution and instead phoned the ward to inform them of the result.

131. The BMS who ultimately validated the sample identified that ‘Ultra’ had flagged up that the sample had not been diluted as required. The BMS carried out the dilution and the new result, which was different, was processed as required.

132. The Registrant had technically validated the sample, contrary to the SOP, and had already phoned through the wrong result when the error in Ultra was identified.

133. The Panel found this particular proven.

5v) On or around 12/04/2018 you technically validated a result which still required further dilution.

134. LM exhibited the PIR which she had raised on 12 April 2018, having received a telephone call the day before questioning this sample result.

135. The sample had arrived in the laboratory 19 March 2018 and had been analysed and validated by the Registrant on 20 March 2018 without undertaking the requisite level of dilution. This was a two-stage process and the Registrant had not undertaken the second dilution. With an intention of obtaining a validated result the Registrant had overridden the machine’s indication that the sample required further dilution.

136. The Panel found this particular proven.

5w) On or around 19/04/2018, you did not appropriately store a sample in that you stored it with the clinical rather than forensic samples.

137. LM raised the PIR for this incident on the 25 April 2018. This incident relates to a forensic urine sample from a deceased patient and as such should have been recorded and kept separately in a lockable cupboard in accordance with PACE requirements.

138. The Registrant was on duty on this bench on 19 April 2018 and was therefore responsible for storing samples at the end of that day. The sample could not be found where it should have been stored. A box dated 19 February 2018 was discovered with clinical samples in it within a non-lockable cupboard. Within this box were three forensic samples, one of which was the sample of 19 April 2018.

139. The Panel finds this particular proven.

5x) On or around 21/02/2013, you did not appropriately store a sample in that you left it in the sluice room overnight.

140. PH exhibited the PIR dated 22 February 2013 for this incident which took place the day before.

141. PH gave evidence that this sample had been outstanding from the list for 21 February 2013 and could not be found. The sample was found the next day in the sluice room inside the centrifuge. The Registrant had been working on the late shift and had used the centrifuge in the sluice room. This machine was only occasionally used as a back-up when the centrifuge in the laboratory was busy or for infectious or foul-smelling samples. The Registrant agreed that in future he would only use the sluice room centrifuge as a back-up.

142. On the basis of the PIR and PH’s evidence, the Panel found this particular proven.

Interim Order Application

143. The Panel received an application from the HCPC for an interim suspension order for a period of twelve months to cover the period during which this hearing will be adjourned and to cover any further period up to the final determination of this case.

144. The HCPC has carried out a risk assessment in light of the findings that this Panel has made on a number of serious allegations and has identified an increase in that risk such that an order is now required.

145. The Panel was reminded that the Registrant is still on the register and able to practise without restriction. The Application is on the two bases of public protection and public interest grounds.

146. In relation to public protection, the Panel has found particulars which identify issues which could have resulted in significant harm to service users. The Panel was reminded of its findings relating to the Registrant’s notifying a result of a Xan8 and instances of errors that could affect patients on drug programmes.

147. In relation to the public interest the HCPC submitted that an informed member of the public would be troubled to learn that in the light of the Panel’s findings the Registrant was not the subject of some restriction.

148. The HCPC’s application for a suspension order is in light of the fact that conditions of practice would not be appropriate in this instance where there has been no engagement by the Registrant with the HCPC process.

149. The HCPC stated that a shorter period than 12 months may not cover the period required to conclude this case and any shorter period than this may result in an application to the High Court.

Decision on Interim Order

Proceedings in absence

150. Having taken legal advice, the Panel decided that it was appropriate at this stage in the hearing to consider the Interim Order Application in the absence of the Registrant.

151. In reaching this conclusion the Panel took into account that the content of the Notice of Hearing sent to the Registrant included the following wording:

‘Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.’

152. The Panel was therefore satisfied that the Registrant had been duly notified that an Interim Order Application was a possible outcome at any point during this hearing.

153. In relation to the Registrant’s non-attendance, the Panel reminded itself of the advice the Legal Assessor gave at the start of this hearing and the matters which it took into account in progressing with the hearing at that time. The Panel remained satisfied that the Registrant had waived his right to be present at the hearing by his failure to previously engage. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to attend at a later date as there was no indication that he would attend on any other occasion.

The Application

154. The Panel considered and took into account the terms of the HCPTS Practice Note on the issue of an interim order when considering the Application.

155. The Panel took into account the fact that it had made findings of fact that indicated a number of concerning issues with the Registrant’s practice. The Panel considered that in the absence of any further information from the Registrant there was nothing to indicate that those failings had been addressed.

156. The Panel noted that the Registrant had not been the subject of an interim order previously. The Panel also noted that in relation to the matters it has had the benefit of hearing in the course of this case it has identified ways in which the Registrant’s practice could have resulted in significant harm to service users. In particular, the matters alleged within particular 5g)i. and ii. relating to the reporting of a Xan8. This led the Panel to conclude that there was a real risk of harm to service users if the Registrant’s practice was not restricted.

157. The Panel considered the public interest in this case and concluded that members of the public would be rightly concerned about the Registrant’s ability to practise without restriction in light of the Panel’s findings.

158. The Panel having made that decision considered whether a Conditions of Practice Order was appropriate in all the circumstances of this case and concluded that it was not in this instance due to the Registrant’s lack of engagement in the HCPC process. There was nothing to indicate that the Registrant would at this time be willing or able to comply with any such conditions even if the Panel were able to identify any that would be suitable.

159. The Panel therefore concluded that the appropriate restriction was that of an Interim Suspension Order. The Panel considered the period for the order and agreed to the period of 12 months on the same basis as that advanced by the HCPC, that it was a sufficient period to allow for the conclusion of this case without the need for an extension by the High Court.

160. The Panel therefore imposes an Interim Suspension Order for a period of 12 months under Article 31 of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

Interim Order

161. The Panel makes an Interim Suspension Order under Article 31 of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

ORDER: The Registrar is directed to suspend the name of Matthew Lane from the Register on an interim basis for a period of 12 months.
This order will be reviewed by the Committee no later than 21 August 2025 or earlier if new evidence which is relevant to the Order becomes available after it was made.

Submissions on Grounds

162. The HCPC had provided the Panel with detailed written submissions and assisted the Panel further by expanding on those orally. The HCPC relied upon the evidence already before the Panel and did not call any new evidence at this stage.

163. The HCPC reminded the Panel that particulars 1 to 4 have been pleaded as constituting misconduct, and Particular 5 is drawn in the alternatives of misconduct and/or lack of competence. In order to assist the Panel to identify whether the matters alleged fall to be considered as misconduct and/or lack of competence the Panel was directed to factors which in the HCPC’s view would assist.

164. In relation to the issue of lack of competence:

a. PH informed the Panel about how the workplace had changed following a merger of departments across two hospitals. The volume of work had increased and some of the equipment had been upgraded. The Panel may feel that this suggests a potential skills gap despite the Registrant being an experienced member of staff.

b. In relation to Particular 5k), Person B told the Panel that if the Registrant had done the training asked of him, the INET error may have been avoided.

c. In relation to Particular 5p), AO told the Panel that the Registrant did not successfully complete his assessment and was temporarily removed from this area of work.

d. In relation to Particulars 5u) and 5v), both relate to the Registrant not identifying that a sample needed to be further diluted. Repetition of the same or similar errors may indicate a gap in the Registrant’s skill or knowledge.

e. In the HCPC’s view, the most compelling argument in favour of a finding of lack of competence came from HP, who said that the Registrant had failed a department-wide competency assessment in 2013.

165. Evidence which may assist the Panel in identifying misconduct:

a. The Registrant was reluctant to complete the competency assessment at Particular 1b).

b. The Registrant was a very experienced member of staff. Person B and HP both said the Registrant only needed refresher training, as he was not doing anything new.

c. Person B told the Panel the Registrant was given protected time to complete training and still did not do it.

d. Some of the errors were described as fundamental or basic errors which would not have been resolved with training. According to AO those at 5a), 5l), 5j) and, according to HP, 5o).

e. The oral evidence supports the position that the Registrant knew how to do the tasks correctly but chose not to work in accordance with the relevant procedure or training. AO considered this to be the case in relation to 5g)i.&ii., PH in relation to 5f), and HP in relation to 5n).

f. HP in relation to Particular 5r), states in paragraph 71 of her witness statement that she was concerned that the Registrant had not stored samples in accordance with the protocol however the Registrant did not agree that it caused any problem, which indicated that he had chosen not to follow the correct procedure because he felt it was not important.

g. In the relation to Particular 5w), the PIR for this incident records that the Registrant knew the correct procedure but was ‘possibly rushing at the end of the day’.

h. PH and LM had both told the Panel in oral evidence that they had both identified that the Registrant was making a high number of mistakes and those showed that the pattern of errors emanated from Registrant’s actions or omissions rather than indicating a specific area where he lacked skill or knowledge.

i. DM, PH, AO and LM told the Panel that the Registrant would often not follow the SOP which LM described as a trend.

166. The HCPC directed the Panel to the sections of the Standards published by the HCPC relevant at the time of these incidents. The Allegation period spans two sets of Standards of Conduct Performance and Ethics, (2003 and 2016 editions) (SCPE) and the Standards of Proficiency for Biomedical Scientists (2003 edition) (SPBS).

167. From the 2003 edition of the SCPE, the HCPC relied upon sections 7, 13 and 16.

168. From the 2016 edition of the SCPE the HCPC submitted that sections 3.3, 3.5 and 9.1 were engaged.

169. From the 2003 edition of the SPBS the HCPC considered that sections 1b.4, 2a.3, 2b.4, 2b.5 and 2c.1 were relevant.

170. In relation to the issue as to whether the matters found proven should be considered as having reached the threshold of being considered serious, the HCPC highlighted the negative impact that the Registrant’s behaviour had on his colleagues. The Panel’s attention was drawn to:

a. The Panel heard that members of staff were scared of the Registrant, AJ found various colleagues became agitated, emotionally upset and angry when he interviewed them. As a result, AJ was worried about them.

b. Person C explained in relation to Particular 3a), that she was shocked by the Registrant’s reaction to her letter.

c. DM told the Panel that the Registrant was quite well known for having a temper and he spoke to the Registrant about how he was perceived as aggressive by colleagues and how he should control his temper.

d. AO told the Panel that he found the Registrant’s behaviour upsetting and he had become difficult to manage because he refused what AO considered to be reasonable management requests. The Registrant at some points would not even to speak to AO.

e. AO told the Panel that some of the Registrant’s female colleagues were wary of the Registrant and SE avoided working with the Registrant to the extent that she would take annual leave, if she could, rather than work with him.

f. In fairness to the Registrant, Person E said she was not offended by the Registrant calling her names, just annoyed, and when AO told the Registrant to stop, he had. Person E maintained a friendship with the Registrant after this.

171. Nobody should expect to work in an environment that is unprofessional, upsetting, shocking or causes them to be scared. Healthcare professionals rely on team-working to provide effective care to patients and when that professional relationship breaks down it is serious.

172. The Registrant in all the circumstances described in particulars 1-4, departed from good professional practice and the facts, as found proved, are sufficiently serious to constitute misconduct.

173. With regards to seriousness in relation to Particulars 5a)-x), panels are routinely invited to consider any actual, or risk of, patient harm arising out of errors when deciding if the facts found proved are serious. A number of witnesses explained that the nature of the work at the laboratory means they are not told what happens to the patients whose samples they are analysing, so any actual patient harm cannot be identified, the Panel received evidence about the context behind the tests involved which will help it in considering whether these were serious errors that might be described as misconduct going to fitness to practise:

a. In relation to 5a), PH told the Panel that no actual harm was caused as far as he was aware. AO told the Panel that this error could have resulted in a patient incorrectly being told they needed urgent treatment because high potassium can signal heart problems, which could cause alarm to the patient and add pressure to the NHS in accommodating emergency tests unnecessarily.

b. Regarding 5b), PH explained that when telephoning results, the person you are speaking to must be identified because you could be talking to the patient. The result must be delivered to someone who can take action. So, whilst a breach of the telephone policy might not immediately indicate a serious error, there is potential for serious problems arising from failure to do so.

c. In relation to 5c), PH explained to the Panel that while he did not know if there had been any patient harm, if a result requires a telephone call then it is a serious issue and there should be a sense of urgency, so there is a risk when a result that meets the criteria for a call is not treated as urgent.

d. In relation to 5d), PH explained that this was a urine sample and the purpose of the test was detection of drugs, so getting that result wrong could have negatively impacted on the patient because the tests were likely to be used to confirm compliance with treatment.

e. Regarding 5e), PH explained this incident was unlikely to have caused harm to the patient but as this was a 24-hour urine sample which meant that it was collected at intervals over a 24-hour period, the need for another sample would have inconvenienced the patient.

f. Regarding 5f), the Panel has heard that the Registrant disagreed with PH as to whether this mattered at all, let alone would be considered serious. PH told the Panel that this error related to potassium levels which he described as the ‘bane of all departments’, because the ranges for the readings are very tight. The real danger was that the Registrant was aware of the correct procedure and positively decided not to follow it. PH described this behaviour ‘as being like a loose cannon’ as there would be no way of knowing which procedures the Registrant was prepared to follow, which in and of itself created a serious risk.

g. In relation to 5g), the Panel heard from PH this incident was considered a serious failing which could have a negative impact on the patient by either the clinical response to the Registrant reporting a XAN8, or through having to take another sample which is taken via lumbar puncture, a process which is particularly unpleasant.

h. Regarding 5h), this incident relates to samples taken to test for the presence of methadone, which PH explained means the patients are likely to be on a drug treatment programme and incorrect sample recordings could result in their medication being increased inappropriately, or for them to be questioned in regard to their compliance with the programme.

i. In relation to 5i), PH stated that this sample was being used for a lactate test, meaning the sample was taken at a specific time in order to gain a snapshot of the patient's condition at that moment. Failure to properly process this sample would result in complications in obtaining a new sample and indeed it may not have been possible to do so. PH commented that he felt the Registrant was cutting corners.

j. In relation to 5j), there was no impact on patients as far as AO was aware because the quality control would have picked up any errors in the test results. There were in this process a number of missed opportunities by others to spot the mistake. The Panel might consider this reduces the onus on the Registrant. However, AO had suggested the error indicated the Registrant was rushing, which increased the risk of potentially serious errors.

k. Regarding 5k), LM told the Panel that she was unaware of any actual patient harm mainly because the error had been picked up in time. Person B explained to the Panel that this was testing for a drug given to patients after a transplant to prevent the organ being rejected so it was important to get it right.

l. In relation to 5l), AO explained that telephoning results to the wrong place is a fundamental error. The issue for the patient is that it is the telephone call that alerts the GP to the urgency of the result. The result was sent electronically to the right place but that result could have remained unnoticed for a while because there had been nothing to alert the GP to review the result immediately.

m. In relation to 5m), the May 2018 incident found proven, the Panel was reminded that this incident again involved tests for patients on drug treatment programmes. As HP explained in paragraph 47 of her witness statement, making an error with these samples could have affected whether the patient was allowed onto or to remain on the programme.

n. In relation to 5n), HP explained to the Panel that the entire day’s results had to be put back to the next day, and this could have been avoided if the Registrant had raised the issue earlier.

o. In relation to 5o), HP had explained to the Panel that in this error, the sample results would have been posted to the wrong patient’s records on the wider patient record systems that are outside the department. Although she did spot the error and corrected it, she had to involve the IT department to remove the incorrect report and to prevent it from being added to the wrong patient’s records.

p. In relation to 5p), LM confirmed she did not have enough information to say if there was a risk to patients or if there had been a significant delay with results being reported, but the seriousness again here is that the Registrant had failed to follow the SOP as recorded by her in the PIR.

q. Regarding 5q), LM also made the point that the PIR recorded errors made by two BMS's [the Registrant booked the wrong test and then the person who realised this error did not take action to find the sample] and neither raised a PIR, which they both should have done. A second sample had already been frozen by the hospital that requested the test, so a second sample was available for analysis. There is no evidence of actual harm caused by the delay. So, in fairness to the Registrant, this identified errors by another BMS and there was ultimately no harm done. However, this is another example of the Registrant not following the SOP.

r. In relation to 5r), HP gave evidence that the Registrant did not recognise his actions as being an error, which in itself caused her concern because putting samples in the wrong place could cause problems for colleagues searching for samples which could impact on patients due to delays caused.

s. Regarding 5s), HP agreed that essentially this was a typographical error. She made the point that this kind of lack of attention to detail can negatively impact on work subsequently undertaken by the lab.

t. In relation to 5t), PH had by this time identified that the Registrant was 'popping up' regularly within the PIR records and questioned why management were not addressing this. PH confirmed this incident involved a sample of blood taken from a new-born baby by way of a heal prick. The test was genetic screening and although there was no harm caused to the baby, this is important, because it is the kind of test result that stays with an individual for life and can impact a number of clinical decisions in your lifetime.

u. In regard to 5u), the Panel was invited to give careful consideration to this incident where the Registrant had raised the PIR but as LM told the Panel, it was likely the Registrant spotted the error himself. Another BMS validated the result without realising there had been a mistake in the dilution however it was corrected right away. The Panel will consider whether this can be considered serious in isolation however the HCPC would invite the Panel to also consider whether this becomes serious when taken as part of a course of conduct that shows this was not the only time the Registrant fell into error by not diluting a sample correctly.

v. In relation to 5v), on this occasion the error was spotted by a senior BMS and was reported by him. On this occasion the Registrant had ignored the machine’s indication that further dilution was required. LM told the Panel that it would have been straightforward to obtain a second sample to run the test again however the Panel is again invited to consider that this becomes serious because this was not the only time the Registrant fell into error around not diluting a sample correctly. Further, the Registrant had also ignored the indication from the machine to further dilute. This indication from the machine to do so is designed to reduce the risk of error.

w. Sub-particular 5w) relates to forensic, or coroner, samples taken from a deceased patient. HP told the Panel how important these samples are and that they fall under the Human Tissue Act and must be protected, stored and disposed of correctly. HP also told the Panel that the PIR indicated the samples may have been bound by police security and may have been used for a police investigation, which further indicates that they must not be left in the wrong place.

x. Sub-particular 5x) relates to using the centrifuge in the sluice room and AO explained that a sample left overnight becomes unusable, meaning it is likely the patient would need to be re-bled. In this case it was a baby. PH told the Panel that taking samples from a baby is not easy and those samples are therefore precious.

174. So, the Panel may consider whether, taken individually, these were serious errors in their own ways. The HCPC invited the Panel to consider that collectively there can be little doubt the particulars found proved are serious. The majority of errors were identified by colleagues either in the same department or at the medical service that requested the tests. In some cases, the Registrant disagreed that they were even errors. The HCPC considers that in itself this increases seriousness as well as the risk of repetition, which is a matter the Panel will consider at the impairment stage.

Panel decision on grounds

175. The Panel appreciated that at this stage there was no burden upon the HCPC and the decision was one for the Panel’s professional judgment taking into account all information before it relating to the Registrant’s conduct. The Panel should only consider those matters where it has made a finding. The Panel therefore discounted from its consideration the element of 3(a) relating to the Registrant’s actions being ‘threatening’, and allegation 5(m), in relation to the September 2018 incident.

176. The Panel sought and accepted the legal advice of the Legal Assessor who gave guidance that the failings should individually or collectively be considered as constituting misconduct. Collectively, they should amount to serious misconduct, in other words, conduct which fellow practitioners would find deplorable.

177. The Legal Assessor also drew the Panel’s attention to the distinction between lack of competence and misconduct. Lack of competence derives from an insufficient knowledge, understanding or judgment as to what is required to be done. Misconduct derives from a knowledge of what is required to be done but through negligence, intent or recklessness a registrant fails to do so.

178. It had been submitted by the HCPC that the Registrant has breached the standards set out in the HCPC’s Standards of Conduct, Performance, and Ethics [2003 and 2016 editions]. The Panel appreciated that it was at liberty to consider all the standards in force at the relevant time when making its decision and further that a breach of those standards did not of itself constitute misconduct. The Panel was at liberty to consider, if relevant, the Standards of Proficiency for Biomedical Scientists.

179. The Panel has set out below its reasons for making findings of the statutory ground of misconduct in all but the two sub-particulars, namely 5j) and 5n)i. In undertaking its task of whether the Registrant’s actions constitute misconduct, the Panel identified that there was a consistent theme of the Registrant adopting an idiosyncratic approach to processes, procedures and management issues. PH described the Registrant as someone who tended to be rebellious and this informed the Panel’s findings on misconduct.

180. In making its findings of misconduct the Panel identified that there had been breaches of the following provisions of the Standards of Conduct, Performance and Ethics as follows: 1, 3, 5, 7, 13 (2008 Standards) and 1, 2.5, 2.6, 3.3, 3.5, 6.1, 6.2, 9.1 (2016 Standards).

Particular 1a)

181. The Registrant’s reluctance to participate in an appraisal and his views of those intending to undertake an appraisal are noted in the Panel’s findings above at paragraphs 55 to 57.

182. The benefits of the appraisal process had been explained to the Registrant by his colleagues. Failure to participate in the appraisal process would, for instance, result in gaps in training being overlooked. It appeared to the Panel that the Registrant understood the reasons for an appraisal process but had actively and intentionally refused to comply with requests to arrange an appraisal.

183. An appraisal was not only an opportunity for management to provide feedback on the Registrant’s performance, but also an opportunity for the Registrant to raise issues of concern. It is, therefore, a matter of note that the Registrant is recorded as expressing his concerns about management, however, he intentionally avoided the opportunity of discussing those concerns with management in an appraisal.

184. In adopting this approach to appraisals, the Registrant had not availed himself of the benefits of the process. He had, however, successfully avoided scrutiny of his performance and frustrated discussion of the risks arising from his unaddressed performance failings.

185. The outcome of the Registrant’s failure to participate in the appraisal process was that underlying performance issues were not addressed and the risks arising from his underperformance continued. In so doing, the Registrant’s actions were in breach of the standards of behaviour expected of a qualified registered professional Biomedical Scientist and in the Panel’s view constitute misconduct.

Particular 1b)

186. The Panel heard evidence about the reasons for this competency assessment. It was to ensure that the Registrant had recalled correctly the processes and any failings in that recall or any changes to practice since a practitioner was on that bench were addressed. The purpose of the competency assessment was to ensure that the Registrant, who had not worked in this area for some time, was up to date on the equipment and remained competent to use it. This was required under the Trust’s internal standards. Unless completed satisfactorily, a BMS could not be left to work in this area without supervision.

187. The Panel heard that it was reasonable for a BMS to have completed the competency assessment within two or three weeks of rotation. The exact date that the Registrant joined this section was unknown, but it was fair to assume that by mid-February the Registrant ought to have undertaken the course. The evidence is that this course was not completed until mid-November and only then when the Registrant had been taken off working on that bench and the matter had been raised with higher levels of management. There was, therefore, approximately a nine-month period when the Registrant had been working on this bench without undertaking the competency assessment.

188. This failure to undertake the competency assessment impacted on management who had to dedicate their time to reminding the Registrant of this issue. Until successfully completed, the management could not have total faith in his ability to work to the requisite standard and so had to keep monitoring his work closely. This ultimately impacted on the working of the team.

189. It was clear from the evidence that the Registrant had consistently failed to respond to requests to complete the course. It appeared to this Panel that he intentionally had failed to undertake the assessment. The comments made by the Registrant had demonstrated a degree of arrogance and sense of entitlement when he commented ‘that they (management) would not let him work on a bench if they did not think he had the relevant competency’. In the Panel’s view this was another example of intentional avoidance and a further display of the Registrant’s disruptive nature.

190. The Panel considered that the failure to undertake this assessment was intentional and a demonstration of the Registrant’s resistance to comply with management requests. It was unprofessional and would be considered by fellow practitioners as deplorable.

Particular 1c)

191. The Registrant was invited to a meeting about the new feature on the analyser but did not attend and could not be found when HP went to look for him. Despite subsequently being informed about the new feature and being asked to use it, the Registrant did not do so.

192. The Panel has concluded that the Registrant’s behaviour is a breach of the standards and does constitute misconduct, however, as a standalone breach it would not amount to serious misconduct. The Panel considers that as a part of the pattern of identified disruptive behaviour it does collectively constitute misconduct.

Particular 2a)

193. The Panel considers that the statement made by the Registrant alleging that Person A had been found guilty of gross misconduct was very serious, particularly as it was established to be an unfounded allegation.

194. If the Registrant had genuine concerns about the nature of Person A’s previous conduct, he could have raised it earlier and with the appropriate department, Human Resources. Making that allegation within an investigatory interview with an Investigating Officer who was there to investigate the Registrant’s behaviour appeared to be a diversionary tactic used to deflect attention from the Registrant’s own behaviour.

195. The Panel considers that to be conduct which would be considered deplorable by fellow practitioners and therefore constitutes misconduct.

Particular 2b)

196. The Panel has set out above the way in which this aggressive and intimidating behaviour had arisen. The Panel heard from Person B the impact that this outburst of temper had upon her at the time. Person B had painted a vivid picture of how the Registrant’s hostile and physical expression of anger had affected her. She had left the room in fear of any further escalation of the situation.

197. The Panel heard from AJ that he was seriously concerned at the impact this incident still had on Person B sometime later when he was called upon to undertake the investigatory interviews. His level of concern was such that he felt the need to provide some continuing pastoral care.

198. The HCPC submitted that no one should be required to work in an environment where they feel unsafe or fearful of a colleague’s behaviour. The Panel agreed with that position and considered that this incident was so serious as to constitute misconduct.

Particular 3a)

199. The Panel considered that the Registrant’s unprofessional response to Person C’s straightforward invitation to a meeting, taken together with his other actions towards colleagues and management, constitutes misconduct.

Particular 3b)

200. The Registrant’s behaviour had caused disruption to the work of the team, startled and upset colleagues generally; such that one colleague felt fearful and compelled to remove herself from the vicinity of the outburst.

201. The Panel considered that this was a further example of the Registrant’s unrestrained response to management and colleagues. This was conduct that fell seriously below what would be considered professional and constitutes misconduct.

Particular 3c)

202. This is an interaction between the Registrant and Person D who had been designated to undertake an investigation of a complaint raised about the Registrant’s conduct. Person D was unable to obtain the Registrant’s confirmation that notes of an investigatory meeting were correct. The Registrant’s email responses were, in the Panel’s view, disproportionate and examples of the Registrant’s disruptive nature and behaviour.

Particular 4

203. The Panel acknowledged that there had been a pervasive element of mutual “mickey-taking” and banter between the Registrant and Person E. However, the Registrant’s failure to stop calling Person E a ‘lesbian’ when she had asked him to and his giving her a laboratory coat embroidered with the word ‘lesbian’ constituted misconduct.

Particular 5

204. The Panel paid particular attention to the definitions and distinctions of lack of competence and misconduct in coming to its decision that the Registrant’s actions did not arise from a lack of knowledge or skill. The Registrant was an experienced BMS. It was accepted that the Registrant had wilfully refused training and competency assessments and worked in a chaotic and non-systematic way. There was however nothing to support the view that the Registrant was incapable of carrying out his duties. The Panel has therefore rejected the position that his actions constituted lack of competence.

205. The Panel addressed the body of allegations contained within Particular 5 in the round and came to the conclusion that, with the exception of 5j and 5n(i), they constituted misconduct.

206. In the Panel’s view, sub-particulars 5j and 5n(i) do not possess the elements of the Registrant’s chaotic working nor of his trait of ignoring and overriding processes and established procedures. These are matter which in the Panel’s view fail to reach the threshold of misconduct because they derive from understandable human error or oversight.

Sub-particular 5j)

207. This relates to the incorrect entering of a six-digit serial number of a batch of Indirect Selective Electrodes on the F1 Analyser. One digit was wrong. In the Panel’s view this was a natural human error and did not contain any element of intentional wrongdoing or carelessness.

Sub-particular 5n)i.

208. This relates to the use of a ballast pump. The Registrant had previously worked on this machine. Upon the Registrant’s rotation to a new work bench he had that day at the start of the shift been given a refresher by HP on how to use it. The Panel was not satisfied that this training was sufficient for an instant refamiliarisation with the machine so that he could be considered at fault for the oil spill.

209. In the Panel’s view, there are two sub-particulars of Particular 5 that do not emanate from the Registrant’s generally rather carefree and chaotic way of working. In these two incidents there was a conscious and deliberate decision on the part of the Registrant to disregard process and procedure and to prefer his own way of doing things in the belief that he knew better than those responsible for setting standard operating procedures. On a standalone basis, the Panel considered these incidents so serious as to constitute misconduct.

Sub-particular 5f)

210. The Registrant had run the tests when the potassium IQC was out of range without making any efforts to resolve issues with it. The Registrant should have taken steps to correct this but failed to do so. In response to PH’s concerns that the tests had been run whilst the setting was out of range the Registrant is recorded as disagreeing with PH and stating that he thought it did not matter.

211. In the Panel’s view, this was a deliberate and conscious decision not to make efforts to resolve problems with the IQC. This failure to ensure that the value was within range could have had severe impact on a patient’s care, such as misdiagnosing a wide range of complications. For example, a patient could be rushed to hospital for emergency cardiac treatment as a result of incorrect findings. There were attitudinal issues evident in the Registrant’s behaviour which make this incident one which the Panel considers, on a standalone basis, to constitute misconduct.

Sub-particulars 5g)i. and ii.

212. These relate to the completion, validation and reporting of a test used to identify whether a patient has had a bleed in the brain; when that bleed occurred; and, how serious it was. It was therefore vitally important that this test was completed in accordance with the SOP and undertaken with the utmost care.

213. It has been factually established that the Registrant had failed to follow the SOP for the validation and reporting of the Xanthochromia test result. The Panel heard from PH that when he had undertaken a review of this incident he had discovered that the Registrant had not been signed off as being competent to deliver results for the Xanthochromia test. PH also told the Panel that the Registrant had been aware of the SOP for this test procedure and had confirmed to PH that there was a folder with that SOP within it on the work bench. The Registrant had failed to reference this SOP.

214. Further, under the SOP, during out-of-hours anything identified as being above a Xan 4 is reported by the BMS as a 4 until further reviewed by the Clinical Biochemist. The Registrant however had validated the results as a Xan 8 and telephoned them through during out-of-hours as a Xan 8. When the result was reviewed the next morning, it was adjusted to a Xan 5.

215. The Registrant’s failure to review the SOP and to adopt the correct reporting protocol of a Xan 4 during out of hours could have resulted in real harm to a patient. The Panel considered that this was an incident that arose out of the Registrant’s cavalier attitude to processes and procedures and was, in the Panel’s view, a clear example of misconduct.

216. In relation to the remaining elements of Particular 5, the Panel identified patterns of working practices as well as behavioural and attitudinal issues, such as disregard of SOP. These misconduct matters resulted in recorded errors and instigated enquiry and report-back mechanisms. These examples of poor laboratory practice diverted resources and took up management time and Trust funds to resolve. If that detection and resolution process had not identified and corrected the Registrant’s errors, there could have been a greater risk of harm to patients arising from the Registrant’s practice. Further, issues such as losing samples and not storing them appropriately could have resulted in the Trust losing its Licence to do forensic work and this would have had a negative impact on its reputation.

217. A number of the Registrant’s actions were the result of his lack of care and attention and his failure to observe good laboratory practices. Examples include: 5b and 5c (regarding telephone policy); 5r (regarding storage of a sample in a reagent fridge); 5w (regarding the storage of a forensic sample with clinical samples); and 5x (regarding inappropriately leaving a sample in a sluice room).

218. The Panel was satisfied that the following particulars demonstrated intentional and reckless disregard for process or as PH described it to the Panel ‘as doing it the Registrant’s way.’ These include 5a (failing to ask for a repeat sample); 5d (failing to reject a sample and to request different patient details); 5k (failing to resolve low internal standard area issues before transmitting a sample to INET); and 5u and 5v (failing to undertake necessary further dilution).

Submissions on Impairment

219. In her written submissions, Ms Bass on behalf of the HCPC, stated.

“the Panel is likely to find the questions outlined by Dame Janet Smith in the 5th Shipman Report (as endorsed in the case of Council for Healthcare Regulatory Excellence v (1) Nursing and Midwifery Council (2) Grant [2011] EWHC 927 (Admin)) helpful. Those questions are:

1. has [the Registrant] in the past acted and/or is liable in the future to act as so to put a patient or patients at unwarranted risk of harm; and/or

2. has [the Registrant] in the past brought and/or is liable in the future to bring the profession into disrepute; and/or

3. has [the Registrant] in the past committed a breach of one of the fundamental tenets of the profession and/or is liable to do so in the future.

4. Has [the Registrant] in the past acted dishonestly and/or is liable to act dishonestly in the future.

In my submission, points 1-4 can be answered in the affirmative in respect of past conduct.

You have heard many examples of unwarranted and avoidable risk to patients which in itself is a breach of a fundamental tenet of the profession.
Repeated errors, refusal to follow the SOP’s, being aggressive at work or directly towards colleagues, and refusing to cooperate with reasonable requests from managers are all likely to be damaging to the reputation of the profession. It is not how members of the public [including patients and colleagues] expect professionals to behave.

Current impairment can be found either on the basis that there is a continuing risk or that the public confidence in the profession and the regulator would be undermined if such a finding were not made.

With regard to future risk, the Panel will likely find assistance in the questions asked by Silber J in the case of GMC v Cohen, namely, is the conduct easily remediable, has it in fact been remedied and is it highly unlikely to be repeated in the future.

As to the risk of repetition, the Registrant did not attend the hearing and has not taken an opportunity to explain to you any steps he might have taken to give you confidence that the actions will not be repeated. You have heard evidence that the Registrant’s response to offers of training was mixed. HP in her witness statement confirmed that the Registrant was receptive to corrective action, but as you have also heard that, more often, the Registrant when was offered training it was refused or he was reluctant. The Panel has also heard that an appraisal would have been an opportunity for him to ask for support or training and he had also refused that. Based on all this evidence it is the HCPC’s position that the risk of repetition is high.

[redacted]

For all the reasons above, it is submitted that a risk of repetition remains high, and the Registrant’s actions are so serious that a finding of current impairment is required in order to maintain public confidence in the profession and to uphold proper professional standards.”

Decision on Impairment

220. The Legal Assessor gave detailed advice on the matters that should be considered at this stage and referenced relevant case law. The Panel’s consideration should be focused on two elements: the personal and the public components. In relation to the personal component, the Panel will take into account that consideration of impairment of fitness to practise is a forward-looking process and that a finding of current impairment means impairment as of today (Zygmunt v General Medical Council [2008] EWHC 2643 (Admin)). In relation to the public component the Panel will take into account the issues which were highlighted within the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) where it was emphasised that the public component was of equal importance to the personal and notwithstanding that there had been successful remediation of the personal elements of a registrant’s misconduct there is an overarching requirement that a practitioner’s behaviour has not fundamentally undermined the reputation and standing of the profession.

221. The Panel’s approach to the structure of its decision making has been informed by the guidance set out in the Practice Note issued by the HCPTS entitled ‘Fitness to Practice Impairment’.

222. Regarding the question of whether the Registrant’s behaviour is capable of being remedied, the Panel considered that this was a possibility. However, the Panel noted the period of time over which there had been concerns expressed about the Registrant’s approach to his work and behaviour addressed towards his colleagues. There had been as HP noted, agreement with the suggestion of changes to his practice but nothing to support that this was ever implemented. Indeed, in relation to training there had been a positive disinclination to address his practice failings. With the notable exception of the Registrant responding to the request by AO to desist with the joke relating to Person E’s sexuality, there is no evidence of any previous steps taken by the Registrant to address his failings.

223. Indeed, in regard to some of the concerning features of this case there is evidence that the issues increased over time. The Registrant’s tendency to react with aggression and hostility had become more obvious during the period 2016 to 2018 when management was taking a more proactive and interactive approach to addressing the Registrant’s ways of working. This has created a difficult working environment for colleagues and there is nothing to suggest that the Registrant understood or accepted that this was the impact he had on colleagues at the time.

224. In relation to the issue of evidence of remediation since these events, there is nothing from the Registrant to evidence this. He has not engaged with the HCPC process or the HCPTS hearing arrangements. In the total absence of any evidence of steps taken by the Registrant to address his working practices and conduct there is nothing to support a finding that he was, subsequent to events and prior to this hearing, working safely and effectively, and working with colleagues within a mutually cooperative and conducive working environment.

225. In terms of the likelihood of repetition in the future, the Panel came to the conclusion that there is, based on the evidence before it, every likelihood of a repetition in the future.

226. In this regard the Panel gave weight to the comments and observations of AJ, who had hoped that the Registrant would identify for himself that there was need for him to personally address his behavioural issues [redacted] The Panel also noted that the Registrant had been surprised when informed that his behaviour was found by others to be upsetting.

227. The Panel has therefore concluded that there is no evidence that the Registrant has taken steps to remediate his former misconduct and nothing to support a conclusion that there would not be further incidents of such behaviour in the future. The Panel has theretofore decided that there is, on the personal component, impairment of the Registrant’s fitness to practise.

228. In relation to the public component the Panel considered that members of the public would be rightly concerned if a practitioner such as the Registrant were not in some way the subject of a marque of censure. The errors made by the Registrant had not caused harm, but there was a high element of risk arising from his intentional overriding of processes which could have resulted in patient harm. The Public would be alarmed and deeply concerned at hearing that the Registrant’s behaviour had resulted in samples which were the subject of Coroner or Police investigations being left unsecured and in inappropriate places where they may not have been discovered by colleagues.

229. Further, the public would be concerned that such a practitioner was, by his hostile and aggressive demeanour, subjecting colleagues to work within an uncomfortable environment. This would be unacceptable to the public and would bring the profession and its regulator into disrepute if a finding were not made on the wider public interest.

230. The Panel has therefore come to the conclusion that the Registrant’s current fitness to practise is impaired on both the personal and the public components.

Decision on Sanction

231. After the Panel handed down its written determination explaining its reasons for finding that both misconduct and current impairment of fitness to practise had been established, the Presenting Officer was allowed time to consider the document before making submissions on sanction.

232. The Presenting Officer began her submissions by stating that the HCPC did not suggest that the Panel should impose any particular sanction. Rather, she made submissions as to the proper approach to the making of a decision on sanction and reminded the Panel of the importance of having regard to the guidance provided by the HCPC’s Sanctions Policy. The Presenting Officer submitted that there were aggravating factors that the HCPC would wish the Panel to consider. These were that the findings made by the Panel represented a pattern of unacceptable behaviour committed over a long period of time, that there had been a potential for service user harm, that the Registrant had not demonstrated insight and had not remediated his shortcomings, and that he had demonstrated an unwillingness to update his knowledge. Conscious of her obligation to present the HCPC’s case fairly, the Presenting Officer had sought to identify mitigating factors that might be considered by the Panel, and, accordingly, she invited the Panel to consider whether the merger of the departments of two hospitals and the change in equipment used should be regarded as mitigating factors. Nevertheless, it was submitted that the case was one involving behaviour that had elements of intentional behaviour and reckless disregard of established procedures. Colleagues had been made fearful, and there had been no acceptance of wrongdoing on the part of the Registrant. The Presenting Officer concluded her submissions by drawing the Panel’s attention to paragraph 131 of the HCPC’s Sanctions Policy and suggesting that if the Panel decided that a striking off order was not the appropriate sanction, clear reasons would be required for that decision.

233. The Panel accepted the advice of the Legal Assessor as to the proper approach to the decision to be made. A sanction must not be imposed to punish a person against whom a finding has been made. Rather, a sanction should only be imposed if it is required in order to protect the public, maintain a proper degree of confidence in the registered profession or regulation of it, or to declare and uphold proper professional standards. The finding already made that the allegation is well founded did not of itself require the imposition of a sanction. Therefore, the first question to be answered is whether the particular circumstances of the case require a sanction. If a sanction is required, the available sanctions must be considered in an ascending order of seriousness until one is reached that satisfies the proper sanction aims already identified. As the finding in this case is one of misconduct, the entire sanction range up to, and including, striking off is available. The Panel confirms that in reaching its decision on sanction, it has followed this approach.

234. The Panel does not propose to repeat findings already explained in the decisions already made. It is, however, necessary to state that the findings involve serious and deliberate behaviour committed over a long period of time. That behaviour included not responding appropriately to proper management requests, making inappropriate comments, behaving inappropriately towards colleagues and clinical shortcomings resulting from a refusal to follows SOPs.

235. The Panel began its deliberations by identifying the aggravating factors present in this case. The conclusion of the Panel was that the following matters were relevant to the decision to be made:

• The Registrant demonstrated a deep-seated attitude not to engage in reasonable efforts by his managers to get him to take steps that were designed to improve professional performance.

• The Registrant’s behaviour represented a failure to work in partnership, something necessary to secure optimal service user outcomes.

• The Registrant was aggressive and demonstrated hostility towards colleagues, and this had a negative effect on them.

• The Registrant deliberately failed to follow SOPs.

• The manner in which the Registrant chose to work resulted in errors. The HCPC’s case has not been advanced on the basis that tangible harm was caused to a service user, but it is obvious that if incorrect results are reported or communicated by a BMS, there is potential for service user harm.

• The behaviours described above were not only repeated, but continued over a long period of time.

• The Registrant showed no intention of addressing nor insight into any of these issues during the time he was employed, and there is no evidence that he has sought to do so since.

• There is an appreciable risk that the Registrant would repeat each of the quite different aspects of his behaviour.

236. The Panel was not able to find that there were any features that could properly be considered to mitigate its findings, although it did take into account the following as relevant contextual matters:

• Colleagues recognised that the Registrant had the ability to practise to a good standard.

• The background to the problems with the Registrant’s behaviour appeared to involve the merger of the two departments identified by the Presenting Officer.

• During the relevant period, individuals who worked at the same level as the Registrant were promoted to a level above him.

237. With the factors identified above in mind, the Panel first asked itself whether this is a case in which a sanction is required. The clear answer of the Panel to this question was that it is; the findings are far too serious to result in no action being taken.

238. The Panel next considered whether a caution order would be appropriate. In this regard the Panel considered paragraph 101 of the Sanctions Policy. The findings of the Panel were of matters that could not be described as isolated, limited or relatively minor. The risk of repetition is not low and the Registrant has not shown good insight, nor has he undertaken appropriate remediation. For these reasons, the Panel rejected a caution order as an appropriate outcome.

239. The rejection of a caution order meant that the Panel considered whether a conditions of practice order should be made, and in that context had regard to paragraph 106 of the Sanctions Policy. Even if appropriate conditions could be formulated to address what were, fundamentally, attitudinal and behavioural deficiencies, the resistance of the Registrant to management efforts during his employment followed by his non-engagement in this fitness to practise process (save for his initial self-referral). The Panel therefore concluded that there could be no confidence that any conditions imposed would be complied with. A conditions of practice order is neither proportionate nor appropriate.

240. The Panel next considered a suspension order, and addressed the factors identified in paragraph 121 of the Sanctions Policy. That paragraph 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.”

241. This case does involve a serious breach of the Standards of Conduct, Performance and Ethics, but, that apart, it does not fall within any of the other suggested characteristics that might result in such an order. The Registrant does not have insight, the issues are likely to be repeated and there is positive evidence provided by what occurred over a long period during his employment that he will not be willing to resolve or remedy his failings. A suspension order would have the effect of protecting the public for the duration of the order, but otherwise it would achieve no useful purpose because the risk of repetition at the end of any period of suspension would be exactly as it is now.

242. The rejection of a suspension order as an appropriate outcome meant that the Panel considered whether a striking off order should be made. The Panel noted that in paragraph 130 of the Sanctions Policy, failure to work in partnership is included in the non-exhaustive list of the types of case that might result in a striking off order being made when serious, persistent and deliberate (or reckless) acts are concerned. Paragraph 131 of the same document is in these terms:

“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.”

243. In the judgement of the Panel, these suggested factors apply to the present case; the Registrant lacks insight, the misconduct was continued during a long period of employment and the Panel’s decisions include specific findings of the Registrant’s unwillingness to resolve matters. Furthermore, given the Registrant’s attitude, the Panel is satisfied that no lesser sanction would sufficiently satisfy the requirement of maintaining public confidence in both the BMS profession and the regulation of it, nor would it provide a sufficient deterrent.

244. Before confirming that a striking off order should be made, the Panel addressed the issue of proportionality. The Panel’s decision does not mean that it is of the view that a serious allegation of the sort proven against the Registrant would always, and in all circumstances, have to result in a striking off order. The reason why a striking off order is required in the present case is because the seriousness of the allegation has implications for service user safety and the smooth running of an important department, and there are no reasons for believing that the issues will not be repeated in the future.

245. For the reasons just explained, the Panel has concluded that it is necessary to make a striking off order.

ORDER: The Registrant is directed to strike the name of Matthew Lane from the Register on the date his Order comes into effect.

 

Interim Order

246. After the Panel announced its decision that the substantive sanction would be that of a striking off order, the Presenting Officer applied for an interim suspension order for a period of 18 months to cover the appeal period. She submitted that the Panel’s decision made in relation to the substantive issues resulted in an interim order being necessary for protection of members of the public and being otherwise in the public interest. In submitting that the order should be made for the maximum period of 18 months, the Presenting Officer argued that if the Registrant did appeal the Panel’s decision, an appeal could take at least that length of time to be finally disposed of.

247. There were no submissions made by or on behalf of the Registrant.

Decision

248. The Panel accepted the advice it received in relation to the application. It also had regard to the section entitled, “Interim orders” between paragraphs 133 and 135 of the Sanctions Policy and the HCPTS Practice Note entitled, “Interim Orders”. Accordingly, it was first required to decide whether it had jurisdiction to consider the application. If satisfied that it had jurisdiction, it must then consider whether the application should be considered in the absence of the Registrant. If the Panel concluded that the matter should be considered in the absence of the Registrant, it must then decide whether there were risks that satisfied one or more of the three grounds that could justify the making of an interim order. Those grounds are, (i) that it is necessary for protection of members of the public, (ii) that it is otherwise in the public interest, and (iii) that it is in the interests of the registrant concerned. If one or more of those grounds is established, then, notwithstanding the decision that substantive conditions of practice should not be ordered, it must nevertheless consider whether interim conditions of practice would be an appropriate response before making an interim suspension order. Furthermore, it is necessary to remember that the default position established by the legislation governing this process is that when a substantive sanction is imposed, there will be no restriction on a registrant’s ability to practise while their appeal rights remain extant. Accordingly, something more than the fact that a substantive sanction has been imposed is required to justify the making of an interim order. The Panel confirms that it has followed this approach.

249. Included in the notice of hearing email sent to the Registrant on 26 November 2024, the following paragraph appeared: “Please note that if the Panel finds that it is necessary to do so, it may also impose an interim order (under Article 31 of the Health Professions Order 2001) at any stage during the hearing. An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel concluded that this afforded the Registrant with the opportunity of making representations on the issue of whether an interim order should be made, and it therefore provided jurisdiction for the application to be considered by the Panel.

250. The Panel decided that the application should be decided in the absence of the Registrant. When an application for an interim order is made there is necessarily a degree of urgency in it being decided without delay. There are no reasons to think that the Registrant would engage in this application were it to be postponed to be decided on a future occasion.

251. For the reasons explained by the Panel in its substantive sanction decision, an interim order is necessary for protection of members of the public and it is otherwise in the public interest.

252. The Panel considered whether interim conditions of practice would satisfactorily address the reasons why an interim order is required, but concluded that for the same reasons the Panel rejected substantive conditions of practice as a suitable sanction, interim conditions of practice were not appropriate.

253. The Panel therefore concluded that an interim suspension order should be made.

254. The Panel decided that the interim suspension order made should be for the maximum period of 18 months. An order of that length is necessary because the final resolution of an appeal could well take 18 months if the Registrant appeals the Panel’s decision and Order. In the event that the Registrant does not appeal the decision and Order, the interim order will simply fall away when the time within which he could have commenced an appeal passes.

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.

History of Hearings for Matthew Lane

Date	Panel	Hearing type	Outcomes / Status
13/05/2025	Conduct and Competence Committee	Final Hearing	Struck off
16/01/2025	Conduct and Competence Committee	Final Hearing	Adjourned part heard
04/03/2024	Conduct and Competence Committee	Final Hearing	Adjourned