Mr Jebez J K Bandi

: Biomedical scientist

: BS46801

: Final Hearing

Date and Time of hearing:10:00 31/01/2017 End: 17:00 03/02/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Caution

Allegation

Allegation:
(As amended at the hearing on 31 January 2017)
During the course of your employment as a Biomedical Scientist at The Pathology Partnership on a date/dates on or around 6 November 2015, you:
1. Took a blood collection kit from your employer without permission and used it for personal purposes.
2. Without permission from an appropriate requesting clinician, took and analysed blood from a member of your family, Person B;
3. Without permission from an appropriate requesting clinician, attempted to have your own bloods analysed.
4. Made several changes in the demography of the laboratory number, in that you:
(a) initially entered Person B's name as unknown, then changed it to Person B and then back to unknown;
(b) altered the name of the person adding a D-dimer to the demography to that of a colleague, Person A.
5. The matters at 1 to 4 above were dishonest;
6. The matters set out in paragraphs 1 - 5 constitute misconduct.
7. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters:
Application to amend the allegation:
1. Ms Chaker made an application to make minor amendments to the Allegation to reflect the evidence. The Registrant was advised of the proposed amendments in a letter dated 25 November 2016.
2. Mr Bradbury had no objections to the proposed amendments.
3. The Panel accepted the advice of the Legal Assessor. The Panel exercised its discretion to allow the amendments. The amendments are not prejudicial to the Registrant and are appropriate.
Hearing in private
4. The Panel decided that it was appropriate to hear part of the evidence in private to protect the private life of the Registrant and Person B. This decision was limited to details related to health.
Background:
5. The Registrant is a registered Biomedical Scientist. At the time of the Allegation, and currently, the Registrant is employed in a band 5 role by the Pathology Partnership at Lister Hospital.
6. The Registrant asked TP to put a sample onto the system for analysis. The Registrant showed him a sample and a request form. TP noticed from the request form that the sample was in the name of a female with the surname “Bandi” (Person B). The Registrant told TP that it was the sample of a relative. TP declined to assist and suggested that the Registrant speak with one of the doctors in the laboratory about it.
7. JW, a laboratory assistant, was responsible for receiving and preparing incoming samples and uploading data on to the IT system. On 9 November 2015 she noticed that the sample for Person B was missing. She spoke to a colleague who was able to identify, from the audit trail, that the Registrant had submitted the request for analysis.
8. Requests for analysis should not be made without authorisation from a requesting clinician. KH was appointed as the Investigating Officer. She interviewed the Registrant on 20 November 2015. In this interview the Registrant stated that he had asked one of the phlebotomists to give him a blood collection kit, but did not tell the phlebotomist why he was requesting the kit.
9. The investigation carried out by KH noted that the audit trail of the sample of Person B showed that it was first recorded by the Registrant at 13.30 on 6 November 2015 as belonging to “UNKNOWN”. Later that day he amended the records so that they appeared in Person B’s name. Ten minutes later he changed the record back to “UNKNOWN”.
10. The same records show that an additional test, a D-dimer, was requested on the sample of Person B’s blood. This is a test which has a strict turnaround time of one hour. This was subsequently flagged in the name of a colleague (Person A). In interview the Registrant initially denied doing this, but when he was shown the audit trail he accepted using Person A’s details, and stated that he did not want the turnaround time to affect his statistics.
11. The investigation also identified that the Registrant had requested a further sample of his own blood. In his interview with KH he stated that his wife had taken the sample of blood from him.
Decision on Facts:
12. The Panel heard evidence on behalf of the HCPC from KH and from JW by video-link. The Panel found both witnesses to be credible. KH was consistent in her testimony under cross examination.
13. The Panel read the witness statement of TP who was not called to give evidence. The evidence of TP was agreed by the Registrant, except for a small detail relating to the conversation between the Registrant and TP that is not material to the Allegation.
14. The Panel heard evidence from the Registrant. The Panel found the Registrant to be a willing and responsive witness. The Registrant appeared at times, under cross examination, not to understand the questions put to him and was unable, on occasion, to resolve apparent inconsistencies in his testimony. The Panel considered this to be a reflection of his nervousness and difficulty of recall.
Particular 1
15. The Panel found that particular 1 is proved by the admission of the Registrant, the documentary evidence and the evidence of KH.
Particular 2
16. The Panel found that particular 2 is proved by the admission of the Registrant, the documentary evidence, the evidence of JW and the hearsay evidence of TP.
Particular 3
17. The Panel found that particular 3 is proved by the admission of the Registrant, the documentary evidence and the evidence of KH.
Particular 4
18. The Panel found that particular 4 is proved by the admission of the Registrant, the documentary evidence and the evidence of KH.
Particular 5
19. The Panel found that particular 5 is proved by the admission of the Registrant, the documentary evidence and the witness evidence. The Registrant was an experienced Biomedical Scientist. Although the Registrant was not familiar with the relevant policies, he knew and understood the basic principle that he should not be taking or analysing blood samples, except as required in his work. He also knew and understood that all the data that he recorded should be accurate. The Registrant therefore knew that what he was doing was dishonest by the standards of reasonable and honest members of the profession.
Decision on Grounds:
20. The question of whether the proven facts constitute misconduct is for the judgment of the Panel and there is no burden of proof.
21. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the required standards.
22. The Registrant’s conduct is a breach of a fundamental tenet of the profession. The dishonesty was in the course of the Registrant’s duties and was a breach of the trust placed in the Registrant by his employer. The conduct was a breach of the HCPC Standards of Conduct, Performance and Ethics particularly standards 10 and 13.
23. The Panel accepted that the Registrant had become anxious and stressed when Person B’s health deteriorated. Although the Registrant’s evidence was confused as to the sequence of events and about his thinking in relation to his mother’s health, the Panel did not find that the Registrant was acting in a planned or calculated manner. The Registrant’s anxiety and distress does not excuse the Registrant’s dishonest behaviour.
24. The Panel found that the Registrant’s conduct fell well below the standards that are expected of a registered Biomedical Scientist and constituted misconduct.
Decision on Impairment:
25. The Panel applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.
26. The Panel considered the level of the Registrant’s insight. The Panel was satisfied that the Registrant understands the seriousness of his conduct and has a sufficient appreciation of the consequences of his conduct for the profession. When he was confronted by his employer the Registrant admitted his wrongdoing and has made full admissions to the HCPC Allegation, including dishonesty. The Panel noted that the Registrant has consistently expressed his contrition and regret to his employer and to the HCPC. He self-referred to the HCPC. The Panel accepted that the Registrant’s remorse is genuine and that his behaviour was out of character. In reaching this conclusion the Panel took into account the evidence of KH who had no concerns about the Registrant’s conduct since the incident and also took note of the testimonial evidence.
27. After the conclusion of the disciplinary process an outcome was that the Registrant was placed on a three month Performance Improvement Plan (PIP). One of the requirements of the PIP was that the Registrant should read and write a summary of the “HCPC code of conduct”. This was a confusing instruction because the relevant document is the Standards of Conduct, Performance and Ethics and there is no HCPC code of conduct. The Registrant produced a summary which was accepted by KH. The document is not entirely satisfactory because it includes references to the Code for HCPC Council members which is irrelevant.
28. The Panel considered Ms Chaker’s submission that the style and content of the document indicates that the Registrant does not have a sufficient understanding of the HCPC Standards of Conduct, Performance and Ethics and that this is relevant to the assessment of the level of his insight. The Panel’s view was that the Registrant does not have a complete understanding of the Standards.  Nevertheless, the key point for the Panel was whether the Registrant has reflected on his past misconduct and developed sufficient insight. The Panel’s view was that the Registrant understands the critical importance of honesty for Biomedical Scientists and that his behaviour damaged public confidence in the profession. He recognises that his own behaviour fell short of the requirements and he accepts his responsibility. The Panel concluded that the Registrant has a sufficient level of insight.
29. The Panel found that the risk that the Registrant will repeat dishonest conduct is very low. Considering the personal component, the Panel did not find that the Registrant’s fitness to practise is currently impaired.
30. The Panel next considered the public component which includes the need to maintain confidence in the profession and the regulatory process. Dishonesty is a fundamental tenet of the profession. Members of the public expect the regulator to take action to uphold the standards of conduct. A finding that the Registrant’s current fitness to practise is impaired is therefore necessary to uphold the standards of the profession. The Registrant’s dishonest conduct damages confidence in the profession of Biomedical Scientists and is inexcusable. Members of the public and members of the profession would find it unacceptable if the regulator did not mark the seriousness of the Registrant’s misconduct by finding that the Registrant’s current fitness to practise is impaired.
31. The Panel therefore found that the Registrant’s fitness to practise is currently impaired on the basis of the public component.
Decision on Sanction:
32. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Indicative Sanctions Policy. The Panel considered the wider public interest considerations including the reputation of the profession of Biomedical Scientists, the need to maintain public confidence in the regulatory process and the deterrent effect on other Registrants. The Panel had in mind the serious nature of a finding of dishonesty which is regarded at the top end of the spectrum of gravity of misconduct.
33. The Panel identified the following aggravating features:
• The Registrant misused his employer’s resources for his own purposes
• The Registrant acted contrary to his employer’s disciplinary policy which specifically states that it is an abuse for staff to conduct blood tests for their own benefit
• The Registrant tried to involve colleagues in his attempt to place unauthorised samples into the system
• The Registrant did not inform his manager about what he had done despite his stated intention to offer to pay for the resources he had used
34. The Panel identified the following mitigating features:
• The Registrant was not seeking to profit from his actions – his actions were motivated by his concern for the health of Person B who was visiting the UK for the first time
• No patients were put at risk
• The Registrant admitted to matters in his employer’s investigation
• The Registrant self-referred to the HCPC when suspended by his employer and has engaged with the HCPC process throughout
• The Registrant made full admissions to the HCPC allegation including dishonesty
• The Registrant has advised the Panel of the strategies he would now use to resist the familial pressure that led him to act in the way he did
• The Registrant’s otherwise unblemished and lengthy career
• The Registrant’s successful return to work, completion of PIP, and subsequent satisfactory conduct and performance.
35. The Panel carefully considered the seriousness of the dishonesty in this particular case and took the view that it is at the low end of the spectrum of dishonesty. It was not calculated and it was an isolated lapse from the Registrant’s general conduct. The Registrant has recognised his wrongdoing and its seriousness.
36. The Panel first considered taking no action. Although the fitness to practise process and this hearing has no doubt been stressful for the Registrant, and of itself might be considered to have had a beneficial effect, dishonesty is too serious not to attract a sanction.
37. The Panel considered that this was not a matter that lends itself to Conditions of Practice. No restriction on the Registrant’s practice is required for the purpose of public protection. The Panel identified in its decision on current impairment that the Registrant did not have a full understanding of the HCPC Standards of Conduct, Performance, and Ethics. However, the Panel decided that this lack of full understanding was not material to the level of the Registrant’s insight into his past misconduct. It is therefore inappropriate for the Panel to impose a condition of practice because any conditions must be based on the Registrant’s current impairment. The Panel did consider that the Registrant might usefully reflect more fully on the HCPC Standards of Conduct, Performance and Ethics.
38. The Panel’s view was that a Striking Off Order would be disproportionate in this case, taking into account the mitigating factors and the insight the Registrant has demonstrated.
39. The choice of sanction was between a Caution Order and a Suspension Order. The Panel considered carefully the public perception of the Registrant’s past dishonest conduct and the impact of each order on public confidence on the reputation of the profession and the regulatory process. The guidance in the Indicative Sanctions Policy for Caution Orders is that:
“A caution order is an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action. A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate”
40. The Panel considered that suspension from practice would be disproportionate in all the circumstances of this case. The Panel’s view was that a period of suspension would not serve the public interest. It would deprive the public of the benefit of the services of an experienced Biomedical Scientist when this is not required to protect the safety of the public. The Panel was satisfied that the less severe sanction of a Caution Order would not undermine public confidence in the profession and the regulatory process. Members of the public would recognise the mitigating factors, especially the Registrant’s admission of dishonesty and his genuine remorse.
41. The Panel’s view was that the other characteristics set out in the guidance on Caution Orders applied and that a Caution Order is therefore an appropriate means of disposal.
42. The Panel considered the duration of the Caution Order. The “benchmark” for a Caution Order is three years. The Panel first considered a one year Caution Order. The Panel decided that the Caution Order should not be less than the “benchmark” three years because of the serious nature of dishonesty. The Panel did not identify any reasons in this case for the duration of the Caution Order to be longer than the “benchmark”. Therefore the Panel decided that the “benchmark” period of three years duration should apply.

Order

The Registrar is directed to annotate the register entry of Jebez J K Bandi with a Caution Order which is to remain on the register for a period of three years from the date this order comes into effect.

Notes

This Final Hearing of the Conduct and Competence Committee took place at 405 Kennington Road London from 31 January 2017 to 02 February 2017.

Hearing history

History of Hearings for Mr Jebez J K Bandi

Date Panel Hearing type Outcomes / Status
31/01/2017 Conduct and Competence Committee Final Hearing Caution