Mr Raoul Ebau
As amended at the final hearing.
During the course of your employment as a Band 5 Biomedical Scientist with the Royal Bournemouth Hospital, you:
1. Inappropriately prepared samples for an Anti-nuclear Antibody run which resulted in around 17 samples having erroneous results.
2. On or around 13 April 2015, processed and/or filed a sample where the Patient Identifiable Description ("PID") did not match the submission form.
3. On or around 20 April 2015, did not book in a Calprotectin sample
4. On or around 9 April 2015, when using the Centrifuge:
a) did not weigh samples to ensure the centrifuge was properly balanced before turning it on;
b) said to the Medical Laboratory Assistant (MLA) that you had weighed the samples when you had not.
5. On or around 08 April 2015, while on reception duties, inappropriately booked a sample on the Liver Kidney Stomach list.
6. Between 24 March and 18 April 2015, while booking in samples:
a) processed Calprotectins requested by GPs without authority;
b) booked in faecal samples as blood samples;
c) when asked by an MLA about multiple errors made when booking in samples incorrectly, stated that the errors arose because you had 'guessed the answer', or words to that effect.
7. On or around 10 April 2015, while on reception duties, did not include a sufficient patient identification description on the following samples:
8. On or around 15 April 2015, recorded the incorrect PID in relation to Specimen number H, 15.3245386.x
9. The action set out in Paragraph 4(b) was dishonest.
10. The matters set out in Paragraphs 1 - 9 constitute misconduct and / or a lack of competence.
11. By reason of your misconduct and / or lack of competence, your fitness to practise is impaired.
Proceeding in the absence of the Registrant
1. At the outset of the proceedings the Registrant was neither present nor represented.
2. Ms Mond Wedd, on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.
3. She submitted first that the Panel was entitled to proceed in the absence of the Registrant because there was clear evidence that he had been served with notice of the proceedings in accordance with the Health Professions Council (Conduct and Competence) (Procedure) Rules 2003 ("the Rules"). She submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because all the evidence indicated that he had disengaged from cooperation with the HCPC and voluntarily absented himself.
4. The Panel received the advice of the Legal Assessor, which it followed and is incorporated in its determination set out below.
5. Accordingly, the Panel approached the question in two stages. First, it considered whether it was entitled to proceed in the absence of the Registrant. Secondly, it considered whether, in all the circumstances, it should exercise its discretion to do so.
6. The Panel received evidence in the form of a notice dated 28 September 2016 and a certificate of service which showed that notice of the proceedings had been sent by first class post on 28 September 2016 to the address held by the HCPC.
7. The Panel had regard to Rule 3 of the Rules, which provides that the sending of a notice under the rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a Registrant is entitled to 28 days’ notice of the hearing. Finally, it had regard to Rule 11 which provides that "where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.”
8. Finally, the Panel had regard to the guidance given to Panels by the Court of Appeal in GMC v Adeogba  EWCA Civ 162, that in deciding whether reasonable steps had been taken to serve a Registrant when notice had been posted to his registered address, the Panel should bear in mind that the Registrant was under an obligation to maintain an up-to-date address on the regulator’s register.
9. In these circumstances, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by posting a notice to the address held by the HCPC on the appropriate register.
10. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence. Ms Mond Wedd put before the Panel a document from the Registrant dated April 2016 and date stamped by the HCPC as received in 13 April 2016, indicating that he no longer intended to engage with the HCPC. She told the Panel that the HCPC had received no other communication from him.
11. The Panel had regard to the guidance given in the Practice Note, “Proceeding in the absence of the Registrant" dated September 2016 and to the House of Lords in R v Jones  UKHL 5. It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care. It should look at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear. On this question the Panel gave considerable weight to the Registrant's document indicating that he did not wish to engage with the regulatory process.
12. It also considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance or that he would wish to be represented at any hearing.
13. The Panel accepted that a Registrant will inevitably suffer prejudice by not being able to present his case. Nevertheless, the Panel balanced that against the public interest in allowing the HCPC to do its work protecting the public. The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: “It would run entirely counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process.”
14. In this case the HCPC had secured the attendance of 4 witnesses who were already required to recall events that occurred nearly 2 years ago. Any further delay would inevitably have a detrimental effect upon them and the quality of their evidence.
15. In all the circumstances the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant because all the evidence pointed to the Registrant having disengaged from the regulatory process and voluntarily absented himself while there was a strong public interest in proceeding with the case so that it will be concluded within a reasonable time.
16. The second preliminary matter that the Panel resolved was whether Mr Agrawal should recuse himself from hearing this case because he declared at the outset that he had had previous contact with Witness 1, who had been a member of the HCPC conduct and competence Panel and an HCPC Education Visitor until 2015.
17. The extent of his association was limited to working with Witness 1 on a 2 day visit of an educational institution in or around 2012 on behalf of the HCPC. He had had no other professional or personal association with him, before or since. He had never sat with him on a Panel.
18. The Panel heard the advice of the Legal Assessor, which it accepted. The test it applied was the established test of “bias”: “Would a fair minded and informed observer, who is neither complacent nor unduly sensitive, conclude (having considered the facts) that there was a real possibility that the tribunal was biased when it made the decision under challenge?”
19. The Panel decided that the contact between Mr Agrawal and Witness 1 was sufficiently short, limited and long ago that no fair minded observer could conclude there was a possibility of bias and accordingly decided that the Panel, as constituted, should continue to hear this case.
Amendment of the Allegation
20. The Panel then heard an application by Ms Mond Wedd to amend the Allegation in the terms set out in the body of this determination. The Panel was satisfied that the HCPC had served notice of its intention to amend the Allegation in June 2016. The proposed amendments did not materially alter the Allegation that the Registrant faced.
21. The Panel heard the advice of the Legal Assessor, which it accepted. The Panel applied the test of whether the amendment was in the interests of justice and could be made without prejudice to the Registrant. It decided it could because the amendment better reflected the evidence and did not change the case which the Registrant had to meet. In addition the HCPC had taken all reasonable steps to give the Registrant notice of its proposed application to amend the Allegation.
Receiving evidence by video link
22. Ms Mond Wedd applied for the evidence of Witness 2 to be received by video link. The Witness had been due to attend the hearing on the second and third days of the hearing. However, she had suffered a very recent bereavement in her family and was reluctant to leave her family to make the journey to London.
23. The Panel had regard to its power to hear evidence in any manner it regarded as appropriate under Rule 10 “if it is satisfied that evidence is necessary in order to protect members of the public”. The Panel decided that if it did not receive the evidence in this way it would lose the opportunity to hear an important witness within a reasonable time and ask proper questions of her. It also decided the video link would give the Panel proper opportunity to assess Witness 2 and go through documents with her.
24. For these reasons the Panel agreed to hear the evidence of Witness 2 via video link and agreed that her evidence should commence as soon as reasonably practicable after 13.30 on Wednesday 1 February 2017, when the link would be available.
25. The Registrant was a Biomedical Scientist who qualified in Italy in 2004. He worked in the United Kingdom as a medical laboratory assistant from August 2008 to August 2009 and from January 2011 until May 2014. Following an interview in November 2014, the Registrant began work on 16 January 2015 as a Band 5 Biomedical Scientist in the Department of Immunology and Pathology at the Royal Bournemouth Hospital. It was his first job in the United Kingdom as a Biomedical Scientist.
26. The Registrant worked at the Royal Bournemouth Hospital until April 2015. During that time his colleagues became increasingly concerned about the standard of the Registrant's work, predominantly basic tasks of booking, weighing, recording and processing samples for analysis. His work generated a significant number of Adverse Incident Reports (AIR) and an internal investigation was carried out in April 2015.
27. Before determining the facts in this case the Panel heard the submissions of Ms Mond Wedd on behalf of the HCPC and received advice from the Legal Assessor, which it accepted. It bore in mind when deciding the facts in this case that the burden of proving all facts rests upon the HCPC throughout. The burden of proof which it applied was the balance of probabilities. When deciding the facts, the Panel drew no adverse inference against the Registrant because he did not give evidence or attend.
Witnesses and evidence
28. Before deciding each of the Particulars of the Allegation in this case, the Panel assessed each of the four witnesses who gave evidence on behalf of the HCPC.
29. Witness 1 was the Pathology Governance and Risk Manager for the Department of Pathology at the hospital. He was responsible for the quality management system of the service and conducted an investigation into the Registrant’s capability in April 2015.
30. The Panel found him to be an honest witness. He assisted the Panel with evidence of the organisation of the department and an explanation of the documents. He had little first-hand experience of the issues although he interviewed the Registrant in May 2015 as part of his investigation. Other witnesses were able to give direct evidence of the events with which the Panel was concerned so that the Panel did not need to rely upon his evidence to any great extent.
31. The second witness to give evidence was Witness 3. She was a Band 6 Biomedical Scientist and team leader in the Immunology/Pathology department at the time when the Registrant was employed. She was also the Quality and Training officer.
32. The Panel was concerned about her evidence relating to the Registrant's training record. The Panel found that her evidence about the creation and signing of the training record was contradictory and in places misleading and evasive. In particular her evidence that the record had been signed within a few days of each training event was inconsistent with her later admission that the record had been signed by her and some other members of staff relying upon other work records, after the Registrant had stopped work.
33. Nevertheless, the Panel found her evidence to be compelling and helpful in other respects. She gave the Panel a clear description of the laboratory, in that it operated in two rooms. She said the layout enabled her to see and hear the Registrant and be satisfied that he was receiving proper instruction and training. The Panel accepted her account of the goodwill with which the Registrant was greeted in the Department and the strong desire of her and her colleagues to ensure that he succeeded in his first job as a Biomedical Scientist and as a team member.
34. The Panel was also impressed by the care and attention to detail with which she examined the Registrant's technical work and was satisfied that it could rely on her evidence in this area in the way set out below.
35. The third witness to give evidence was Witness 4 who was a Medical Laboratory Assistant (MLA) working in the reception department of the laboratory. The Panel found her to be a good and reliable witness. She was clear about the entries she had written in the Registrant’s training record and demonstrated that she had kept a contemporaneous log of his work in the department.
36. She assisted the Panel with an explanation of the way which a new scientist was introduced to the laboratory. She explained how all new employees started with reception work, logging and recording samples.
37. She gave convincing evidence that she showed the Registrant how to complete the tasks in the Department but was never in a position to sign off the Registrant as competent in any of the tasks that she had to teach him because she could never rely upon him to complete them without making errors.
38. She told the Panel that the work in reception consisted of basic tasks, often carried out by MLAs. She was also training an MLA who had arrived in the Department shortly before the Registrant. The new MLA had completed this training satisfactorily within three weeks.
39. The fourth witness was Witness 2 who was the Laboratory Manager for the Department of Cellular Pathology and Immunology. Inevitably, a great deal of her evidence depended on what others reported to her and the documents that she collated at the time, albeit that she did interview the Registrant on occasions.
40. The Panel found her to be an impressive witness. She was consistent and thoughtful in her approach and used her documents sensibly to refresh her memory of events in a way that gave the Panel confidence in her evidence. The Panel was satisfied that she was well informed about what was happening in the department for which she was responsible.
41. The Panel was also assisted by a body of documents including the AIRs, the Registrant's training record, a contemporaneous log of the Registrant's work in the reception department and screenshots from the computer system showing the recording of samples.
42. The Panel then considered each Particular of the Allegation in turn.
43. Particular 1 – Proved
The Panel accepted the evidence of Witness 3 that the Registrant prepared samples for this task. It saw the AIR number 82614 which shows that this task was performed on 18 February 2015. The Panel noted that there is a measure of confusion about the date when the task was completed because there is reference in a statement by a scientist SF indicating that the date was 16 January 2015. Having considered the AIR, which is a contemporaneous document, the Panel is satisfied that the February date is correct.
44. The Panel bore in mind that when the Registrant was interviewed as part of the formal investigation in the laboratory, he was led to believe that the date was 16 January 2015, which was the day that he started work. To that extent he was deprived of the opportunity to explain the incident.
45. However, the Panel accepted the evidence of Witness 2 that the Registrant was challenged about his failure at the time and was unapologetic, saying simply that he was new and that "these things happen".
46. The Panel accepted the evidence of Witness 3 that the Registrant had misaligned 17 samples so that there was no longer a reliable match between the original samples received in the laboratory, the samples tested and the written records which form the basis of reports submitted ultimately to the service users.
47. As a result, 17 samples had to be retested which involved a considerable amount of extra work. In the event, only 4 results were wrong but the reliability of all 17 samples was undermined. Accordingly, the Panel finds this Particular proved.
48. Particular 2 – Proved
The Panel heard the evidence of Witness 4 that on 13 April 2015 she had checked samples booked on the Telepath system by the Registrant. She noted that he had processed a sample where the PID on the sample did not match that on the submission form. The Panel saw documentary evidence which shows that the sample and form referred to 2 different patients who shared a surname. Accordingly, the Panel finds this Particular proved.
49. Particular 3 – Not Proved
The Panel heard evidence from Witness 2 that on 20 April 2015 the laboratory received a telephone call from the Basingstoke hospital to say that a Calprotectin sample, which is a stool/faecal test used to detect inflammation in the intestines, had been returned to them in its box un-tested.
50. Witness 2 very properly explained that because the sample had never been tested there is no record of when it was received or who handled the transport box in the laboratory. Ms Mond Wedd submitted that the Panel could be satisfied that the Registrant was responsible because he was working on reception for some of the period before 20 April 2015 and there is evidence in the log of Witness 4 that he had made a number of careless mistakes around this time.
51. The Panel accepts that there is some circumstantial evidence pointing to the Registrant being responsible. However, he was only one of a number of people who could have been responsible and it was undisputed that he was not working between in the laboratory between 15 and 20 April 2015 because he was suspended on 15 April 2015. In those circumstances the Panel is not satisfied that the HCPC has produced sufficient evidence to discharge the burden of proof, even on the balance of probabilities, and finds this Particular not proved.
52. Particular 4(a) and 4(b) - Proved
The Panel heard the evidence of Witness 4 that she was in reception with the Registrant when he was using the centrifuge on 9 April 2015. She saw that the centrifuge was shaking violently and making excessive noise. She turned it off and weighed the sample buckets.
a. She discovered that one of them weighed 2g more than the sample bucket opposite it. The Registrant did not deny that he had setup the centrifuge and in a subsequent meeting with Witness 2 he eventually admitted that he had not weighed the samples. Accordingly, the Panel finds this Particular of the Allegation proved.
b. The Panel also heard the evidence of Witness 4 that she asked the Registrant whether he had weighed the samples and he told her that he had. The Panel heard her evidence that he repeated (but later retracted) this assertion at a subsequent meeting with Witness 2 and Witness 2’s evidence confirmed this. The Panel accepts this evidence and, in the light of its finding at 4(a) above, is satisfied this Particular of the Allegation is proved.
53. Particular 5 – Not Proved
The Panel heard the evidence of Witness 4 that on 8 April 2015 she discovered a sample booked on the Liver Kidney Stomach list when it was also on another list (the IREQ list). Her evidence is that upon checking the booking records she could see that the Registrant had booked in the sample on both lists.
54. Witness 4 gave evidence that she became aware of the incident that day and also looked at the booking records. Her evidence was that another member of staff had booked in the sample, while the Registrant was engaged in labelling and filing away samples. This conflict of evidence was never resolved and accordingly the Panel found that the HCPC had not discharged the burden of proving, even on the balance of probabilities that it was the Registrant who had booked the sample on the wrong list.
55. Particular 6(a) - Proved
Witness 4 gave clear evidence that she discovered this error had occurred on 19 April 2015 when she checked the Registrant’s work on reception. The Panel also heard the evidence of Witness 2 that the staff had been told not to accept such samples for testing from GPs because the laboratory did not have funding to test them.
56. Witness 4’s evidence on this is supported by her contemporaneous error log in which she recorded that she had explained this "many times" to the Registrant and also by entries in the sample booking records and in an AIR dated 17 April 2015. Accordingly the Panel found this Particular of the Allegation proved.
57. Particular 6(b) - Proved
This error was described by Witness 4 in her evidence. She reported it in an email to Witness 2 and recorded it in her contemporaneous error log. The Panel was not assisted by the evidence in the form of screen shots from the computerised booking-in records because:
i. The entry which shows a wrongly entered sample is outside the time frame of this Particular and;
ii. The 2 entries showing samples within the time frame are shown after they had been corrected and it is there for not possible to discern the original entry.
Nevertheless, the Panel was satisfied that that the evidence of Witness 4 was reliable and supported by contemporaneous records. Accordingly the Panel finds this Particular of the Allegation proved.
58. Particular 6(c) – Not Proved
The Panel found that the only contemporaneous evidence that the Registrant had said what is alleged is in an AIR dated 17 April 2015 in which it is reported that he had said he had “guessed results” on a number of occasions. There is no example given nor is anyone identified as hearing this remark. Witness 4 did not refer to this remark in her evidence. Witness 2 gave evidence that this remark had been reported to her by Witness 4 but she did not know to whom it had been said or when.
59. In these circumstances the Panel was not satisfied that the HCPC had discharged the burden that this remark had been made to an MLA as alleged. Accordingly it found this Particular of the Allegation not proved.
60. Particular 7 – Proved
This Allegation was made in an email from SF to Witness 2. The Panel found that it is supported by a contemporaneous entry in an AIR dated 13 April 2015. The Panel also considered the email written by the Registrant on 10 April 2015, in which he accepts that both samples did not have sufficient PID at that point “because he was very busy”. The Panel also noted from the Telepath screenshots that the samples were booked in by the Registrant. Accordingly, the Panel is satisfied that this Particular of the Allegation is proved.
61. Particular 8 – Not Proved
Having regard to all the evidence, the Panel were satisfied that an error had occurred in respect of this entry. However, the Panel found that the evidence that the Registrant was responsible is not sufficient to discharge the burden of proof on the HCPC. Witness 3 and Witness 4 were both reporting what they had been told by another member of staff (EC). The Panel did not hear from EC and did not know sufficient to be satisfied that she is a reliable source of information. The AIR (completed by Witness 3) indicates that an error has been made by the “training BMS”, who may or may not be the Registrant. The hand written explanation attached to the AIR is unsigned and its authorship is unclear. Accordingly the Panel does not find this Particular of the Allegation proved.
62. Particular 9 – Proved
The Panel accepted the advice of the Legal Assessor that in order to be satisfied that the Registrant had been dishonest they must apply a two-stage test:
a. was what the Registrant said dishonest by the standards of ordinary honest Biomedical Scientists at the time he said what he did
b. did he know that it would be regarded as dishonest by those standards
63. The Panel also accepted the advice of the Legal Assessor that they should approach an allegation of dishonesty with caution: “an Allegation of dishonesty should not be found to be established against anyone, particularly someone who has not been shown to have acted dishonestly previously, except on solid grounds.”
64. The Panel found that the Registrant knew that he had not weighed the samples when he said that he had. Little time had elapsed since he loaded the centrifuge, he was confronted with clear evidence in the behaviour of the centrifuge and repeated the denial to Witness 4 and Witness 2 after he had been confronted with the evidence that the samples had not been weighed.
65. The Registrant only confessed that he had not weighed the samples later in the discussion with Witness 2. The Panel is satisfied from those circumstances that the Registrant knew, when he was asked, that he had not weighed the samples.
66. Having regard to the Registrant’s history of errors, with which he had been confronted over a number of weeks, the Panel was satisfied that the Registrant said something he knew to be untrue in order to escape blame for another, and more serious mistake.
67. The Panel is satisfied that saying something untrue to cover up a mistake is dishonest by the standards of ordinary and honest people and there is no reason to doubt that the Registrant knew that.
Decision on the grounds
68. The Panel next considered whether the Registrant’s actions as found proved in Particulars 1, 2, 4(a), 4(b), 6(a) 6(b), 7(a), 7(b) and 9 amount to misconduct and/or lack of competence. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel also considered the advice of the Legal Assessor.
69. The Panel found in the case of all the Particulars proved, apart from 4(b) and 9, that the facts proved established a lack of competence.
70. The Panel found that it was a fundamental competence of a Biomedical Scientist to be able to perform laboratory tasks consistently and with attention to detail. The Panel had regard to the Registrant's training record, which demonstrated that he had never been found competent on any of the basic skills required of him. He demonstrated that he could do the necessary tasks correctly on occasions but was unable to do so consistently.
71. The Panel heard evidence that the Registrant received adequate training from his colleagues of the sort which they had given to new members of the laboratory team in the past and to another colleague starting at around the same time as the Registrant.
72. The witnesses expressed on a number of occasions their surprise and indeed bewilderment that someone as well-qualified as the Registrant appeared incapable of acquiring the basic skills needed to work in a laboratory. The Panel shares those concerns.
73. The Panel had regard to the Standards of Proficiency for Biomedical Scientists and found that the Registrant’s competence was lacking in the following areas:
Standard 1 (be able to practise safely and effectively)
Standard 4 (be able to practise as an autonomous professional)
Standard 10 (be able to maintain records appropriately)
Standard 11 (be able to reflect on review practise)
Standard 14 (be able to draw on appropriate knowledge and skills to inform practise) and
Standard 15 (understand the need to establish and maintain a safe practise environment).
74. The Panel found that the Registrant’s conduct as found at Particulars 4(b) and 9 was dishonest. The Panel had regard to The Standards of conduct, performance and ethics of the HCPC.
75. Standard 13 provides that a Registrant must behave with honesty and integrity.
76. The Panel is satisfied that the Registrant’s conduct as found under Particulars 4(b) and 9 breaches Standard 13 and so amounts to misconduct.
Decision on impairment
77. The Panel next considered whether the Registrant’s current fitness to practise is impaired by reason of lack of competence and misconduct. The Panel was aware that this is a question for its own judgement. In reaching its decision the Panel considered both the personal component and the public component together with the advice of the Legal Assessor. The Panel has also had regard to the HCPC Practice Note “Finding that Fitness to Practise is Impaired”.
78. With regard to the personal aspect, the Panel considered whether the Registrant had the skills, knowledge and character to practise his profession safely.
79. It was satisfied that the failings in the Registrant's laboratory skills and performance were potentially serious. If he had not been closely supervised a significant number of service users would have been sent erroneous results relating to someone else. This would inevitably have impacted upon their diagnosis and treatment.
80. The Panel was satisfied that the Registrant's failings were wide-ranging and persistent. It was of particular concern that there was considerable evidence that he made the same mistakes repeatedly. Most of the Registrant’s recorded failures did not occur during the first few weeks of his employment but after he had been employed and trained for over two months.
81. The Panel considered whether the Registrant had shown any insight into his failings and a willingness to remediate. The Panel found that there was no evidence that he had and a considerable body of evidence indicating that he did not. For example he had sent a document to the HCPC in April 2016 blaming others for his shortcomings and indicating that he had no interest in remediation.
82. The Registrant’s lack of insight and subsequent failure to engage with his regulator lead the Panel to conclude that he has done nothing to improve his skills since April 2015. The overwhelming likelihood is that his skills will have further diminished. The Panel concludes that the risk of repetition is high.
83. The Panel considers that the finding of dishonesty is also serious in the absence of any evidence that he has reflected upon it and understood that it must never be repeated. It is important that those dealing with a professional can trust that person to be honest.
84. The Panel considered the public aspect of fitness to practise and in particular the need to uphold public confidence in the profession and in the regulation of the profession. The Panel is satisfied that public confidence would be diminished if the Registrant were allowed to practise without restriction.
85. Accordingly the Panel is satisfied that the Registrant's fitness to practise is impaired by reason of lack of competence and misconduct.
Decision on sanction
86. The Panel heard submissions from Ms Mond Wedd on the issue of sanction. The Panel also considered the advice of the Legal Assessor and had regard to the HCPC’s Indicative Sanctions Policy (the ISP).
87. The Panel is aware that the purpose of sanction is not to be punitive but to protect the public. A sanction may be punitive in effect but it should not be imposed for that purpose. The Panel is aware it must consider the risk the Registrant may pose to service users in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest, which includes upholding the reputation of the profession and public confidence in the regulatory process.
88. The Panel found the following mitigating features. The Registrant’s failings arose during his first employment as a Biomedical Scientist in the UK. The Panel recognised that English was not the Registrant’s first language. His act of dishonesty was a single isolated incident which lasted less than a day, did not impact directly on the public and was not motivated by gain
89. The Panel found the following aggravating features. The Registrant’s lack of competence was serious and wide ranging. He demonstrated that he was unable to carry out work normally done at a lower grade by an MLA. The Registrant has demonstrated consistently that he has no insight into the level of his failings. He has not learnt from errors or otherwise taken steps to improve his performance even when matters were raised with him at work and help was offered. He demonstrated a consistent lack of attention to detail. Throughout his dealings at work, with the investigation carried out by his former employers, and with the HCPC he has been defensive and unhelpful and has sought to blame others. His communication with his colleagues was poor.
90. The Panel has considered the sanctions available to it in ascending order of severity. Throughout its considerations it has had regard to the principle of proportionality, balancing the protection of the public and the rights of the Registrant.
91. The Panel considered that to take no action or to impose a Caution Order would not be appropriate given the serious nature of the Registrant’s failings and the risk of repetition identified. The Panel has concluded that neither sanction would be sufficient to protect the public nor to address the wider public interest considerations.
92. The Panel has also considered a Conditions of Practice Order. The Panel has had regard to paragraph 24 of the ISP which provides:
Conditions of Practice will be most appropriate where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practice, albeit subject to conditions, poses no risk of harm or future harm.
93. In the light of its finding that the Registrant’s failings were wide ranging and that he poses a risk to service uses, the Panel is not satisfied that public safety would be adequately protected by a Conditions of Practice Order.
94. The Panel has also had regard to paragraph 27 of ISP which provides that:
The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in cases:
• where there are serious or persistent overall failings;
• the registrant lacks insight or denies any wrongdoing; or
• involving dishonesty, breach of trust or the abuse of service users.
95. The Panel had regard to the communication from the Registrant to the HCPC marked received on 13 April 2016, in which he said that he did not wish to be part of a professional body which labelled its members as dishonest people and that he is “resigning from the HCPC”.
96. In these circumstances the Panel does not have any confidence that the Registrant would comply with any conditions and accordingly decided that it would be inappropriate to make a Conditions of Practice Order for that reason as well.
97. The Panel then considered a Suspension Order. The Panel could not impose a more restrictive sanction in respect of the Registrant’s lack of competence. It considered whether it should do so as a result of the finding of dishonesty it had made.
98. The Panel decided that a Striking Off Order was not necessary or appropriate at this stage. The single incident of dishonesty was not sustained. The Registrant did repeat it to two people but retracted it within a relatively short time on the same day. Nor did it impact directly upon public confidence. It was not motivated by gain but rather an attempt to escape responsibility for failing to carry out his laboratory tasks.
99. The Panel has had regard to paragraph of 40 of ISP, which says: “Striking off should be used when there is no other way to protect the public”. It came to the conclusion that it could not make that finding on the basis of a single isolated incident of dishonesty without first giving the Registrant a further opportunity to engage with the HCPC. A period of suspension would achieve this while protecting the public. Accordingly the Panel makes a Suspension Order.
100. The Panel then considered the appropriate length of that order. It had regard to the need to give sufficient time for the registrant to improve his skills and for the period of suspension to mark the gravity of his lack of competence and misconduct. Taking all these matters together, the period the Panel considers appropriate is 12 months.
101. This order will be reviewed before it expires. Given that the Registrant has been operating well below the expected level of a Biomedical Scientist, a future panel is likely to be assisted by the following:
a. Current evidence that the Registrant is capable of carrying out safely and effectively the full spectrum of work that a Band 5 Biomedical Scientist is expected to be able to carry out
b. Testimonial evidence that the Registrant has behaved with honesty and integrity.
c. Evidence of reflection by the Registrant that has led him to have insight into his failings and misconduct and taken steps to ensure there is no repetition.
102. Ms Mond Wedd submitted that the Panel should make an interim order in this case in order to ensure that the Registrant was suspended during the 28 days following the sanction imposed by this Panel and during any period during which the Registrant may exercise his right of appeal.
103. The Panel received the advice of the Legal Assessor, which it accepted.
104. The Panel found that there is a serious continuing risk to service users or the public from the registrant’s lack of professional knowledge or skills in this case because of the gravity and extent of his lack of competence and his continuing lack of insight.
105. Accordingly the Panel was satisfied that it is necessary to impose an interim order. The Panel was satisfied that the appropriate length was 18 months in order to cover the period within which any appeal brought by the Registrant could be heard.
The order imposed today will apply from 3 March 2017 (the operative date).
This order will be reviewed again before its expiry on 3 March 2018.
History of Hearings for Mr Raoul Ebau
|Date||Panel||Hearing type||Outcomes / Status|
|03/01/2018||Conduct and Competence Committee||Review Hearing||Struck off|
|30/01/2017||Conduct and Competence Committee||Final Hearing||Suspended|