Saber Bashir

Preliminary Matters

1. The Panel has been convened to undertake the final hearing of the HCPC’s Allegation against the Registrant.

2. The composition of the Panel requires an explanation. The Panel comprises a Lay Chair and two Registrant Panel Members, a Biomedical Scientist and a Clinical Scientist. The reason for this composition is because the Registrant is registered in two parts of the HCPC Register; he is registered as both a Biomedical Scientist and a Clinical Scientist. Furthermore, as can be seen from the stem of the Allegation, the HCPC’s case is that the Registrant’s fitness to practise in both of his professions is impaired. The Panel accepted the advice of the Legal Assessor that these facts required the inclusion in the Panel of members of both professions for the provisions of rule 3(6) of The Health Professions Council (Practice Committees and Miscellaneous Amendments) Rules 2009 to be satisfied.

3. When the Registrant was offered the opportunity to respond to the Allegation, his response was as follows:

• He admitted particulars 1 to 4 inclusive (making it clear in relation to particular 4 that there had been no change relating to his good character).
• He denied particulars 5, 6, 7 and 8.

4. Following the Registrant’s response to the Allegation, the Panel received advice from the Legal Assessor relating to the relatively new guidance offered to panels as to how admissions can be treated. The Panel had regard to the HCPTS Practice Note entitled, “Admissions”, and, in particular, to paragraphs 9 to 15 inclusive of that document.

5. The conclusion of the Panel was that it accepted the Registrant’s admissions in relation to particulars 1 to 4 inclusive, and declared them proved. The Panel noted that in relation to particular 4, the admission (and its own finding) was that on 1 September 2021 and 5 July 2021, the Registrant declared to the HCPC that there had been no change to his good character.

Background

6. Underpinning all of the issues in this case is the fact that on 26 January 2014, the Registrant accepted a simple caution administered by the Metropolitan Police. The caution related to an incident that occurred the day before, 25 January 2014. The information provided to the Panel about the incident was not entirely clear, but it appears that when the Registrant visited a family member an incident occurred during which the Registrant sought to intervene in a manner that would not be described as violent. However, as the incident escalated there was physical contact between the Registrant and a female family member that constituted a common assault.

7. The Registrant did not disclose the caution to the HCPC until 26 July 2022, when he sent an email in which he stated, “I have a question about self referral. I was cautioned by police over 8 years ago for a personal family matter, do I need to do a self referral now? Please advise. Thanks”. Very shortly after sending that email, he sent another email on 8 August 2022, which stated, “Please ignore this question as the DBS came back negative as there is no record found. Thanks.”

8. There are two distinct allegations included in the Allegation. One allegation is that the Registrant’s fitness to practise is impaired by reason of the caution. The other is that his fitness to practise is impaired by reason of misconduct, the misconduct alleged by the HCPC being the matters set out in particulars 2 to 6 inclusive of the Allegation.

9. In relation to the misconduct allegation, although the case is advanced by particulars 2, 3, 4 and 5, the HCPC’s fundamental case is that the Registrant did not disclose the caution as he should have done. By particular 6 it is alleged that the Registrant’s failure to disclose the caution to the HCPC was dishonest.

Decision on Facts

10. The HCPC did not call any witnesses to give live evidence before the Panel. Rather, the witness statements of two witnesses employed by the HCPC were introduced. Their evidence was that there was no record of the Registrant disclosing the caution before July 2022. They also produced evidence relating to registration renewals made by the Registrant.

11. The Registrant gave evidence before the Panel. His evidence was that he did not know about his obligation to disclose the caution until he was told by an agency through which he was working very shortly before 26 July 2022 that he should do so. He said he was ignorant of the obligations he had under the Standards of conduct, performance and ethics. In relation to his online renewal applications on 1 September 2021 and 5 July 2021, he stated that his good character had not changed and had been unaffected by the caution. He said that he had not been dishonest, and stated that if he had been dishonest, he would hardly have written his email to the HCPC disclosing the caution on 26 July 2022.

12. It has already been stated that particulars 1, 2, 3 and 4 were proven by the Registrant’s admissions.

13. The Panel therefore began its deliberations by deciding whether the HCPC had proved particular 5 against the Registrant. The declarations alleged by the HCPC in relation to “good character” were those particularised in particular 4, namely those made on 1 September 2021 and 5 July 2021. Reliance was not placed on other renewals in which like declarations might have been made. The declaration was that there had on the respective dates been no change in good character. The only way in which the HCPC has been able construe that allegation was that there had been no change since the last renewal made two years earlier. In the judgement of the Panel it could not be said that there had been a negative change in the Registrant’s character resulting from the caution that occurred in the period 2019 to 2021. The Panel finds particular 5 not proven on that basis. It follows that it was not necessary for the Panel to consider whether the point made by the Legal Assessor in relation to the “protected period” relevant to the caution for the purposes of the HCPC’s application of the Rehabilitation of Offenders Act had any significance.

14. With regard to particular 6 and the allegation of dishonesty, it was necessary for the Panel to decide what the Registrant’s state of mind was in failing to disclose the caution in order to apply that finding to the question whether ordinary decent people would categorise the failure as dishonest.

15. The Panel accepted the Registrant’s evidence that he was ignorant of the HCPC’s requirement imposed by Standard 4 of the HCPC’s Standards of conduct, performance and ethics in force in 2014 (and of standard 9 of the Standards that came into effect in 2016). Applying that finding to the “ordinary decent people test”, the Panel is satisfied that it would be said that the Registrant’s ignorance of the standards with which he should have been complying was a lamentable failing, but one that was not dishonest. Accordingly, the Panel finds that particular 6 is not proven.

Decision on Grounds

16. As indicated above this is a case in which there are two grounds alleged, caution and misconduct.

17. The finding that particular 1 is proven satisfies the ground of caution.

18. The Panel carefully considered whether its findings that particulars 2, 3 and 4 are proven had the consequence that misconduct is established. In reaching its decision the Panel accepted the advice it received that a serious falling short of the standards of conduct to be expected would need to be made out.

19. In the judgement of the Panel, the failure to report the caution to the HCPC was a serious matter. This is a case in which there was not timely disclosure of an issue that was required to be disclosed, and the reason why it was not disclosed was because the person who had the obligation to disclose it was ignorant of his obligation to do so. It is only if the HCPC has information that might be relevant to the fitness to practise of registrants that it can discharge its overarching duty to protect the public, and that obligation cannot be dictated by whether individual registrants take the view that their particular circumstances do not warrant consideration. Nor can the failure to make required disclosure be excused by ignorance of the basic requirements of registration.

20. In the circumstances, the Panel is of the view that the findings on particulars 2 and 3 necessitates a finding of misconduct.

Finding on Impairment

21. The Panel considered the issue of current impairment of fitness to practise separately in relation to the two statutory grounds, and with regard to each it followed the guidance contained in the relevant HCPTS Practice Note and addressed both the personal and public components.

The caution

22. The caution was administered in relation to a reprehensible incident that occurred over 11 years ago. The fact that the impact of it is being considered that length of time after the incident is a matter that is relevant to the issue of misconduct and impairment of fitness to practise in relation to misconduct. There is no suggestion that the incident that resulted in the caution being administered represented anything other than isolated and out of character behaviour when a family dispute got out of hand. There has been no suggestion of repetition of unacceptable behaviour of a similar type since January 2014.

23. The Panel does not consider that the caution or the behaviour underlying it is currently impairing the Registrant’s fitness to practise upon consideration of the personal component. While acknowledging that behaviour in the private life of a registered health care professional is relevant to their professional standing and reputation, after careful consideration, the Panel has concluded a finding of current impairment of fitness to practise is not required to satisfy the wider public interest.

Misconduct

24. The Panel has already stated that it takes the view that the failure to disclose the caution was an important matter as it arose from the serious issue that the Registrant was ignorant of the requirements that he should do so. The Registrant stated, and the Panel accepted his evidence on the topic, that were similar circumstances to present themselves in the future, he would ensure that he would report the matter to the HCPC. However, in the judgement of the Panel the Registrant’s evidence left a residual feeling that he has not been as proactive as he should be in identifying for himself what his professional obligations are. This finding has the consequence that the Panel has concluded that a finding of current impairment of fitness to practise is required in relation to the personal component.

25. For two distinct reasons the Panel considers that a finding of impairment of fitness to practise is required to satisfy the public component. One is that the public must have the confidence that the HCPC cannot be deprived of the opportunity of considering whether an issue such a caution is worthy of further investigation as a result of a registrant making their own decision whether the matter is worthy of disclosure. The other reason is that it is necessary to send a message to the profession as a whole that ignorance of the requirements of HCPC Standards documents cannot be allowed to be advanced as a defence.

Summary of findings

26. The conclusion of these findings is that the caution allegation is not well founded. The misconduct allegation is well founded with the result that the Panel must go on to consider whether a sanction is required in relation to the misconduct allegation.

Decision on Sanction

27. After the Panel handed down its written determination explaining its decision on the allegation, it allowed the parties time to consider the document before making their submissions on sanction.

28. On behalf of the HCPC, the Presenting Officer made it clear that the HCPC did not urge the Panel to impose any particular sanction, acknowledging that the decision was one for the Panel’s discretion applying proper considerations to the decision. She made submissions as to the proper approach to making a sanction decision and urged the Panel to have regard to the HCPC’s Sanctions Policy.

29. When asked if he wished to address the Panel on sanction, the Registrant stated that he did not have any submissions.

30. The Panel accepted the advice of the Legal Assessor as to the correct approach to the decision on sanction. Accordingly, it accepted that a sanction should not be imposed to punish a registrant against whom a finding has been made. Rather, a sanction should only be imposed if it is required to protect the public, to maintain a proper degree of confidence in a registered profession and the regulation of it, or to declare and uphold proper professional standards. To ensure that these principles are applied, a panel considering the issue must first decide if the finding on the allegation it has made requires the imposition of any sanction at all. If a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until it reaches one that sufficiently addresses these factors. In reaching its decision a panel is required to have regard to the HCPC’s Sanctions Policy. The Panel confirms that it has applied this approach in the present case.

31. At the commencement of its discussion, the Panel identified any aggravating or mitigating factors. In the judgement of the Panel it could be considered an aggravating factor that the HCPC was left in ignorance of the caution for a period of over eight years. A mitigating factor is the manner in which that long period of delay came to an end because it was the Registrant himself who belatedly made disclosure of the caution when expressly made aware of the requirement to do so.

32. The Panel also identified the specific factors that it considered that would dictate whether a sanction is required, and, if it is, what that sanction should be. There is no suggestion of clinical concerns in the present case. Furthermore, the Registrant’s breach did not give rise to a direct risk of harm to service users; the seriousness of it lies in the fact that the HCPC was deprived of the opportunity of considering whether fitness to practise proceedings should have been instigated as a result of the caution having been administered. Notwithstanding the absence of a risk of direct service user harm, the requirement that the HCPC is fully informed is an important one, as is the reason why that did not happen in the present case, namely the Registrant’s failure to act proactively in ensuring that he knew what he should have been doing. As has already been stated in the Panel’s decision on impairment of fitness to practise, there is also the important factor that other registrants must understand that ignorance of HCPC Standards cannot succeed as an excuse for failing to comply with them.

33. With the factors identified in the two preceding paragraphs in mind, the Panel asked itself whether this is a case in which a sanction is required. The Panel answered that question by deciding that a sanction is required; were there to be no sanction at all, the public would be insufficiently reassured that the Registrant’s breaches were treated as serious and other registrants would be insufficiently deterred.

34. Having decided that a sanction is required, the Panel posed the question whether a caution order should be imposed. In that regard it considered paragraph 101 of the Sanctions Policy. The Panel takes the view that the present case is one that concerns an isolated and limited incident, and one that can properly be considered to be relatively minor in nature given the absence of dishonesty. The Panel also considers that there is a low risk of repetition, and the Registrant has shown a degree of insight into his failure, not least by acknowledging that he should have known of the obligation imposed by the Standards of conduct, performance and ethics to make disclosure of the caution. This is a case in which remediation, save for acknowledging, as the Registrant has, that the matter will not recur is relevant.

35. Having tentatively arrived at the conclusion that a caution order would be appropriate, the Panel considered what would be required were it not to impose a caution order. Conditions of practice would not be appropriate; the Registrant’s breach arose from a failure to observe the ordinary and basic requirements of registration. In the judgement of the Panel it is not required that the Registrant should be prohibited from practising, even on the short-term basis that would result from the making of a suspension order. Suspension would be disproportionate as it would not be required to protect the public from the risk of harm, and fair-minded members of the public would not require it to be satisfied that HCPC registrants are being robustly regulated. For these reasons, this is a case in which paragraph 102 of the Sanctions Policy has direct relevance.

36. For the reasons set out above the Panel has concluded that a caution order should be made. In all the circumstances the Panel is satisfied that the appropriate length of that order should be one year. That period is sufficient to remind the Registrant of the importance of being aware of his professional responsibilities and long enough to satisfy the public interest considerations of public confidence and declaration of professional standards already referred to. In short, a caution order for one year is necessary but also sufficient.

ORDER: That the Registrar is directed to annotate the Register entries of Saber Bashir with cautions which are to remain on the Register for a period of 1 year from the date this Order comes into effect.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

History of Hearings for Saber Bashir