Mrs Noorus Khan

: Biomedical scientist

: BS62107

: Review Hearing

Date and Time of hearing:10:00 03/03/2017 End: 13:00 03/03/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

(as found proven at the final hearing)

 

During the course of your employment with North Bristol NHS Trust as a Band 5 Biomedical Scientist between July 2008 and 12 December 2012:

 

1.     You did not demonstrate basic laboratory skills and knowledge, including:

 

a)   In April 2012 during assessment of your preparation of a standard solution;

b)    during assessments on:

 

i) 28 June 2012; and/or

ii) 5 July 2012.

 

3.  You did not demonstrate appropriate interpretative skills, including in April 2012

during an assessment of your interpretation of abnormal results in core analytes.

 

4.  You did not demonstrate effective organisational skills.

 

5.  You required a high level of supervision

 

6.  The matters described in paragraphs 1 - 5 constitute a lack of competence.

 

7.  By reason of your lack of competence your fitness to practise is impaired

Finding

Preliminary Matters:

Proof of service

1. The HCPC sent a Notice of Hearing to the Registrant’s registered address on 26 January 2017 (and also by email). The Notice set out all the relevant information about today’s proceedings. The Panel was satisfied that reasonable notice has been given. The Registrant clearly obtained the documentation as she emailed the HCPC on 22 February 2017 referring to these proceedings.

Proceeding in absence

2. Ms Omo on behalf of the HCPC applied for the Hearing to proceed in the Registrant’s absence.  She submitted that the Registrant has had good notice of the proceedings and indeed has corresponded with the HCPC subsequent to service of the notice for today’s hearing. Mrs Omo submitted the Registrant should be considered to have voluntarily absented herself from the proceedings. There is little likelihood of the Registrant attending on a future occasion if the matter were adjourned today.

3. The Panel noted that this is a mandatory review of the order. It had regard to the recent HCPC Practice Note on Proceeding in the Absence of The Registrant dated September 2016.  It has also accepted the advice of the Legal Assessor who referred to the recent case of GMC v Adeogba (2016) EWCA Civ. 162.  That case makes it clear that whether the Registrant had been properly served with notice is of crucial importance, and the Panel is required to consider the strong public interest in dealing with fitness to practise proceedings expeditiously.  It noted that the discretion to proceed in the absence of the Registrant must be exercised with the utmost care and caution bearing in mind the prejudice to the Registrant in proceeding, balanced against the public interest in adjourning the proceedings. The Health and Social Work Professions Order requires that the Registrant must be afforded an opportunity to appear before and be heard by a Panel before making an order, but the Registrant’s absence does not preclude an order being made provided that opportunity has been made available.

4. The Panel has found that there has been good service of the Notice of Proceedings and that it is appropriate to proceed in the absence of the Registrant.

5. The Registrant had not sought an adjournment of these proceedings. She has corresponded with the HCPC by email subsequent to service of the notice. The email dated 22 February 2017 states “I would like to inform you that I have been busy taking care of my family and it has not been possible for me to obtain employment as a Biomedical scientist”. She is clearly aware of the Hearing today. The Panel concluded that there was no guarantee that the Registrant would attend a future review hearing if the case was adjourned.  This is a mandatory review which needs to be dealt with urgently. The Panel is satisfied that it is in the public interest for this matter to proceed today.

Background

6. Mrs Khan started work with the North Bristol NHS Trust in July 2008 as a Band 5 Biomedical Scientist. This was her first post following qualification. Following a period of maternity leave commencing in February 2009, she returned to work on a part time basis.

7. In September 2011, AB, the newly appointed Laboratory Manager, identified performance concerns relating to the Registrant's practice. This led initially to an informal meeting being arranged between the Registrant and her Section Lead. Subsequently a performance improvement plan was put into place from the end of September 2011.

8. The first stage of a formal capability process was started in November 2011 when a review of the performance improvement plan identified a lack of satisfactory progress up to that date. Under the formal capability process, a revised personal improvement plan was set. Recognising a break down in the relationship between the Registrant and her Section Head, it was decided that the Registrant would move to a different section of the laboratory to complete the revised personal improvement plan.

9. Reviews of this revised personal improvement plan in late February 2012 and mid-April 2012 identified inconsistent progress and continuing concerns. It was agreed that a number of Senior Biomedical Scientists would be asked to assess the Registrant's practice by undertaking a series of theoretical and practical tests. These assessments took place during June and July 2012.

10. The review of the results of the assessments undertaken, initially deferred to allow information about the Registrant's health to be received, was held on 1 October 2012, when it was decided that Stage Three of the capability process should be commenced. A capability hearing was scheduled for 13 December 2012, but the Registrant resigned from her post before it was due to take place.

11. The original panel concluded that the facts found proved at the Final Hearing amounted to a lack of competence and that the Registrant's fitness to practise was consequently impaired by reason of that lack of competence.

12. The Registrant did not attend the Final Hearing, although she had sent in written submissions. The original panel concluded:

'It is clear from the Panel's findings that Mrs Khan's fitness to practise was impaired from the period 2011 to 2012 when the relevant events occurred. The issue to be decided by the Panel, however, is whether the past lack of competence is currently impairing Mrs Khan's fitness to practise. The conclusion of the Panel is that her fitness to practise is currently impaired.
The reason for this finding is that there is no evidence that Mrs Khan's practice would now be any different to that demonstrated in the past. In particular, in advancing her case Mrs Khan has not addressed any of the performance issues that were highlighted in the capability review process, choosing to contend that they were motivated by management desire to reduce costs and staffing. It follows that the Panel cannot conclude that Mrs Khan has any insight into her shortcomings or has remediated them.'

13. The Registrant was suspended for 12 months.

14. The Registrant did not attend the first review hearing on 4 March 2015. That first reviewing panel concluded:

'The Registrant has not engaged with the Council and had not produced any evidence to demonstrate remediation of or insight into her lack of competence. She has not produced any of the material that was identified by the Panel as being helpful on review. In the absence of any evidence of remediation or insight the Panel concluded that the considerations that operated in March 2014 are still valid and as a consequence her fitness to practise remains impaired by reason of lack of competence.

15. As a consequence the first reviewing panel extended the duration of the suspension order for a further 12 months.

16. The Registrant did attend the second review hearing on 01 March 2016. She indicated that her circumstances had changed and that in 2014 she had started a new job as a Healthcare Scientist Support Worker for Public Health England in Bristol. At that time she said that she was keen to return to the Register although her field was now microbiology rather than biochemistry. She provided evidence of training certificates, competency sheets and annual appraisals with her current employer.

17. The second reviewing panel were impressed with the Registrant’s evidence and concluded that she had developed some insight into her previous shortcomings. However, the panel determined that her fitness to practise remained impaired as she had not fully addressed her failings although it concluded that her failings were remediable.

18. The second reviewing panel therefore made a Conditions of Practice order. In so doing it stated

“The Panel recognised that due to the length of time which the Registrant had been out of registered practice, as part of her return to practice, she would have to undertake workplace assessments. The Panel anticipate that such ongoing assessments would potentially be able to run alongside any Conditions of Practice Order.
The Panel determined that the order should be for a period of 12 months, which would give the Registrant time to both obtain employment as a Biomedical Scientist and to work for a sufficient period in that employment in order to demonstrate her competence”

19. The Condition of Practice were as follows:

1. If you carry out work which requires registration with the HCPC as a Biomedical Scientist, you must place yourself and remain under the supervision of a workplace supervisor, registered by the HCPC as a Biomedical Scientist and supply details of your supervisor to the HCPC within 14 days of obtaining a post, or if you are already holding such a post, within 14 days of receiving this decision.
2. You must not carry out Preparation of Standard Solutions used for testing unless directly supervised, until such time a Biomedical Scientist, registered with the HCPC has assessed you as competent.


3. You must work with your workplace supervisor to formulate a Personal Development Plan designed to address the following areas of your practice

• Organisational skills

• Interpretative skills.

4. Within 28 days of obtaining a post, or if you are already holding such a post, within 14 days of receiving this decision, you must forward a copy of your Personal Development Plan to the HCPC.

5. You must provide a report from your workplace supervisor to the HCPC, before the next review of this order that attests to your ability to practise safely as a Biomedical Scientist.

6. You must inform the following parties that your registration is subject to these conditions:

A. Any organisation or person employing or contracting with you to undertake professional work;

B. Any agency you are registered with or apply to be registered with (at the time of application) and

C. Any prospective employer (at the time of your application)

Representations of the HCPC

20. Ms Omo today submitted that the Registrant’s fitness to practise is still impaired and the Panel should make a further order. She submitted that the appropriate sanction was Strike Off. She said that the Registrant had failed to provide any information about her circumstances since the last hearing other than a brief email stating that she had not gone back to practice as family commitments have not permitted her to obtain employment as a Biomedical Scientist.

Decision:   

21. This Panel has taken into account all documentation placed before it and considered the Registrant’s written submission (limited as it was) contained in her email of 22 February 2017. There was no further information forthcoming concerning the Registrant’s circumstances and as indicated the Registrant did not attend for the hearing. The Panel has heard the HCPC submissions; heard and accepted the advice of the Legal Assessor; and it has reminded itself of the terms of the Council’s Practice Note ‘Article 30 (2) Reviews’ which, while addressing a slightly different provision, contains useful guidance for the current application. In summary, the legal principles in respect of an Article 30 (1) review are as follows:

i) The primary objective of the Panel is to secure public protection in the most appropriate and proportionate way

ii) The Panel cannot go behind the original decision. Its task is to consider whether the order under review remains an appropriate and proportionate means of securing public protection. The Supreme Court recently emphasised that it is not for the reviewing panel to consider the adequacy of the original sanction as part of its deliberations. A review is “a vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation” and it can never be a proper ground for the exercise of the power to extend the period of suspension than the period originally directed -Habib Khan v GPhC (2016) UKSC 64.
 
iii) The correct approach is to determine whether the Registrant’s impairment  identified at the final hearing is still continuing and if so what level of  restriction is appropriate.

iv) The Panel can allow the current Conditions of Practice order to lapse, extend it or replace it with any sanction including, in the present circumstances striking off- see Article 22 (1) (a) (ii) Health and Social Work Professions Order 2001. The Panel should consider the sanctions in ascending order of severity.

22. The first question for the Panel is whether the Registrant can be said to have remedied the deficiencies previously identified such that her fitness to practise is no longer impaired. The Panel’s firm conclusion is that she has not. The Registrant has produced no evidence of remediation or insight since that demonstrated at the hearing last year (where it was recorded that she effectively accepted that she remained impaired). The Registrant has now been out of practice as a Biomedical Scientist continually since her resignation from North Bristol NHS Trust in December 2012. The Panel was satisfied that the Registrant’s fitness to practise remains impaired.

23. Accordingly the Panel has gone on to consider sanction. Considering available sanctions in ascending order as it must, it is clear that mediation or a Caution would not be an appropriate and proportionate response to the impairment identified due to the seriousness of the allegations found proved. A Caution would not address the risk to the public.

24. While there is no evidence that the Registrant has breached the Conditions of Practice formulated at the last occasion, more significantly there is no evidence that she has used the opportunity provided by those conditions and the removal of the suspension to demonstrate safe and competent practice.  The Registrant has not provided information of her attempts to secure employment as a Biomedical Scientist. There is no evidence of continuing professional development of any kind. The Registrant’s correspondence does not indicate whether she remains employed in her previous role of Healthcare Scientist Support Worker for Public Health England. There is no evidence of any assessments or training conducted while in that or any other role since the last hearing. The Panel has concluded that the Registrant has not used the opportunity provided by the previous order. The Panel is mindful of the HCPC Indicative Sanctions Policy which states that “the imposition of conditions requires a commitment on the part of the Registrant to resolve matters”. The Registrant has, through her inaction since March 2016, failed to demonstrate such a commitment. For these reasons it would be difficult for the Panel to formulate Conditions of Practice that would be workable, practicable and verifiable and appropriately address the impairment identified. A further Conditions of Practice Order is not appropriate.

25. The Panel is also of the view that a further period of Suspension is not appropriate. The Registrant has now had 3 years to demonstrate efforts to address the serious shortcomings that led to the original order for Suspension. The purpose of the Conditions of Practice Order was to enable the Registrant to both obtain employment as a Biomedical Scientist and use that employment to demonstrate her competence. The Registrant has not provided evidence of her attempts to secure such employment. There is no evidence that the Registrant has attempted to keep her skills and knowledge up to date as required to perform as a competent Biomedical Scientist.

26. For the reasons given above the Panel concluded that the proportionate order in the current circumstances is one of Striking Off. While the Panel recognise that such an order may have profound effects for the Registrant, it has decided that such an order is necessary to protect the public and uphold professional standards.  

Order

ORDER: That the Registrar is directed to strike the name of Mrs Noorus Khan from the Register on the date this order comes into effect.

Notes

This Order will apply from 01 April 2017

Hearing history

History of Hearings for Mrs Noorus Khan

Date Panel Hearing type Outcomes / Status
03/03/2017 Conduct and Competence Committee Review Hearing Struck off
01/03/2016 Conduct and Competence Committee Review Hearing Conditions of Practice